[Senate Hearing 117-518]
[From the U.S. Government Publishing Office]
S. Hrg. 117-518
S. 3123, S. 3126, S. 3273, AND S. 3381
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 16, 2022
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
49-895 WASHINGTON : 2022
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COMMITTEE ON INDIAN AFFAIRS
BRIAN SCHATZ, Hawaii, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
MARIA CANTWELL, Washington JOHN HOEVEN, North Dakota
JON TESTER, Montana JAMES LANKFORD, Oklahoma
CATHERINE CORTEZ MASTO, Nevada STEVE DAINES, Montana
TINA SMITH, Minnesota MIKE ROUNDS, South Dakota
BEN RAY LUJAN, New Mexico JERRY MORAN, Kansas
Jennifer Romero, Majority Staff Director and Chief Counsel
Lucy Murfitt, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on February 16, 2022................................ 1
Statement of Senator Merkley..................................... 3
Statement of Senator Murkowski................................... 2
Statement of Senator Padilla..................................... 4
Statement of Senator Rounds...................................... 2
Statement of Senator Schatz...................................... 1
Statement of Senator Smith....................................... 26
Witnesses
Isom-Clause, Kathryn, Deputy Assistant Secretary, Indian Affairs,
Department of the Interior..................................... 5
Prepared statement........................................... 7
Kennedy, Hon. Cheryle, Chairwoman, Confederated Tribes of Grand
Ronde.......................................................... 12
Prepared statement........................................... 14
Milanovich, Hon. Reid, Vice Chairman, Agua Caliente Band of
Cahuilla Indians............................................... 16
Prepared statement........................................... 18
Pigsley, Hon. Delores, Chairman, Confederated Tribes of Siletz
Indians........................................................ 9
Prepared statement........................................... 10
Vogel, Sharon, Executive Director, Cheyenne River Housing
Authority...................................................... 19
Prepared statement........................................... 20
Appendix
Confederated Tribes of the Umatilla Indian Reservation, prepared
statement...................................................... 31
Confederated Tribes and Bands of the Yakama Nation, prepared
statement...................................................... 32
Response to written questions submitted by Hon. Ben Ray Lujan to:
Kathryn Isom-Clause.......................................... 35
Sharon Vogel................................................. 39
Response to written questions submitted by Hon. Brian Schatz to:
Kathryn Isom-Clause.......................................... 35
Hon. Cheryle Kennedy......................................... 38
Hon. Reid Milanovich......................................... 43
Hon. Delores Pigsley......................................... 38
Sharon Vogel................................................. 41
S. 3123, S. 3126, S. 3273, AND S. 3381
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WEDNESDAY, FEBRUARY 16, 2022
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:40 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 four bills, S. 3123, a bill to amend
the Siletz Reservation Act to address the hunting, fishing,
trapping, and animal gathering rights of the Confederated
Tribes of Siletz Indians, and for other purposes; S. 3126, a
bill to amend the Grand Ronde Reservation Act to address the
hunting, fishing, trapping, and animal gathering rights of the
Confederated Tribes of the Grand Ronde Community, and for other
purposes; S. 3273, Agua Caliente Land Exchange Fee to Trust
Confirmation Act, and S. 3381, Tribal Trust Land Homeownership
Act of 2021.
Senator Merkley's bill, S. 3123 and 3126, would amend the
statutes establishing the Siletz and the Grand Ronde Tribes'
reservations in order to permit the tribes, the State of
Oregon, and the United States, to renegotiate the scope of the
tribes' hunting, fishing, gathering, and trapping rights.
Senator Padilla's bill, S. 3273, would clarify the trust
status of land exchange between the Agua Caliente Band of
Cahuilla Indians and the Bureau of Land Management as part of
the creation of the San Jacinto National Monument.
The last bill on our agenda, Senator Thune's 3381, would
help address a problem this Committee heard much about last
Congress, the lengthy path to tribal homeownership on trust
lands. This bill would formalize deadlines for the BIA to
process and complete mortgage packages for residential and
business mortgages on Indian land, among other improvements.
Before I turn to Vice Chair Murkowski, I would like to
extend my sincere welcome and thanks 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 will keep my comments brief. I think you have described
well the contours of each of these four measures dealing with
tribal land issues.
I would like to comment on S. 3381. This is the measure
introduced by Senator Thune, as well as Senator Rounds here on
our Committee, and Senator Tester and Senator Smith. We all
know that the issue of access to housing for Indian communities
is something that has been identified as a top priority for the
Committee to work on this Congress. Good news is that we have
now moved the NAHASDA bill from Committee. That is going to be
very helpful with reforms in HUD's Indian Housing program.
According to HUD's 2017 Housing Assessment for American
Indian and Alaska Native Communities, in order to eliminate
overcrowding in tribal areas, this is actually all data between
2013 and 2015, a total of 68,000 new units would need to be
constructed, 33,000 new units and another 35,000 new units to
replace units that were severely physically inadequate. Many
tribal and regional housing associations believe that this is
an underestimate, I certainly believe it is, and think that the
need is much, much greater.
According to Freddie Mac's chief economist, the national
housing shortage totals nearly 4 million housing units. So with
such an obvious need for housing in Indian Country, and
nationally, any barriers that we can address, we should. That
includes some of the Federal regulations for processing and
review of various mortgage packages and title clearance reports
on tribal trust lands. That is what S. 3381 aims to do. It sets
deadlines for the Bureau of Indian Affairs to adhere to,
establishes a realty ombudsman position reporting directly to
the Secretary of the Interior to clear out the logjams, and
provides access to the Bureau's Trust Asset and Accounting
Management System for relevant agencies and tribes.
So I am looking forward to hearing the presentation on
these four bills, and the opportunity to exchange questions and
answers afterwards. Thank you to the witnesses.
The Chairman. Thank you, Vice Chair Murkowski.
Now we will turn to Senator Rounds to introduce his witness
from South Dakota.
STATEMENT OF HON. MIKE ROUNDS,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Rounds. Thank you, Mr. Chairman. First of all, she
is joining us virtually today. Mr. Chairman and Madam Vice
Chair, first of all, I want to say thank you to all of our
witnesses for taking time to attend today's hearing.
I am pleased to introduce Ms. Sharon Vogel from my home
State of South Dakota, and thank her for her willingness to
testify. Sharon Vogel serves as the Executive Director of the
Cheyenne River Housing Authority in Eagle Butte, South Dakota,
on the Cheyenne River Sioux Reservation. She is also chairwoman
of the United Native American Housing Association with 33
member tribally designated housing entities, or TDHEs, from
seven different States.
Sharon has spent the past 20 years dedicating her career to
bettering the housing opportunities for our Native American
communities. I am very grateful that she is taking the time to
join us here today. I can just share with you, visiting with
her, she knows more about Native housing challenges and the
opportunities to improve upon it than about other person I
know. I am very pleased she is here with us today.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Rounds.
Now we will turn to Senator Merkley. Welcome to the
Committee to introduce your two testifiers from Oregon.
STATEMENT OF HON. JEFF MERKLEY,
U.S. SENATOR FROM OREGON
Senator Merkley. Thank you very much, Mr. Chairman, ad Vice
Chairman Murkowski, and members of the Committee, for holding
today's hearing to look at how we address a few of the broken
promises made to Indian Country over the years.
One of the great injustices inflicted on Oregon's tribes
was termination of their status as federally recognized tribes
in 1954. It would be decades before the damage was so clear
that efforts to reverse course gained traction here in
Congress.
My predecessor, Senator Mark Hatfield, who I had the
pleasure of interning for way back in the 1970s, led the
efforts in the Senate to restore the first of our tribes'
sovereignty, the Confederated Tribes of the Siletz Indians, in
1977. A few years later, he championed the Grand Ronde
Restoration Act, which restored the Confederated Tribes of the
Grand Ronde in 1983.
Even then, the two tribes didn't have land to call their
own. They were a people without a home. Even when they received
land to call home, the final consent agreements imposed upon
them, well, took a number of their rights. They were forced to
give up the ability to exercise their hunting, fishing,
trapping, and gathering rights to acquire that modest land
base.
That is why I have introduced S. 3123 and S. 3126, which
would repeal the statutory provisions in the Siletz and Grand
Ronde Reservation Acts, codifying the consent decrees on under
lying hunting and fishing rights agreements. This would give
both the State of Oregon and the Siletz and Grand Ronde Tribes
the opportunity to renegotiate those agreements to address this
historic wrong.
I am pleased to welcome and introduce leaders from these
two tribes, Chairman Delores Pigsley, of the Confederated
Tribes of the Siletz Indians, and Chairwoman Cheryle Kennedy,
of the Confederated Tribes of the Grand Ronde. Originally from
Toledo, Oregon, Chairman Pigsley has served as an advocate for
the Siletz Tribe since first being elected to the tribal
council in 1975, the moment the tribes began seeking to reverse
their termination.
For 29 of her 36 years on the council, she has served as
its chairman, representing the tribe at Federal, State, local
and intertribal government levels. She has also served as a
tribal delegate to the National Congress of American Indians,
Affiliated Tribes of the Northwest Indians, the National Indian
Child Welfare Association, and the National Indian Gaming
Association. As someone who is involved with tribal government
since before these consent agreements were created, she has
unique first-hand knowledge and experience of how these
agreements came to be, and why they must be reversed.
For many decades, Cheryle Kennedy has been deeply involved
in the restoration of the Confederated Tribes of the Grand
Ronde, and the leadership of the tribe. I believe she was first
chair in 1985 and 1986. She began serving again on the council
after the turn of the century and has spent I think the entire
last decade as chair.
Before being elected to serve on the tribal council, she
worked as a health administrator for tribes and as a tribe's
health director. She is a former commissioner of the Rural
Health Council of Oregon, a former commissioner of the Oregon
Women's Commission, a member of the National Congress of
American Indians, and appointed chair of the Commission on
Indian Services by the Oregon legislature.
I can't think of two better individuals to address this
Committee over these issues, because they have been involved
all the way through from before restoration. Thank you for
entertaining these bills and these witnesses today.
The Chairman. Thank you, Senator Merkley.
It is a pleasure to introduce Senator Padilla, who has
already distinguished himself as a real effective advocate for
the Native people in California, and the nations within.
Senator Padilla, your witness.
STATEMENT OF HON. ALEX PADILLA,
U.S. SENATOR FROM CALIFORNIA
Senator Padilla. Thank you, Mr. Chairman, Ranking Member
Murkowski, for holding this hearing on S. 3237, and for
allowing me this opportunity to introduce Reid Milanovich, the
Vice Chairman of the Agua Caliente Band of Cahuilla Indians.
Vice Chairman Milanovich will be testifying on this bill
that I have introduced together with Senator Feinstein and
Congressman Raul Ruiz on the House side, to place certain lands
into trust for the tribe. This bill would finally allow the
Agua Caliente Band of Cahuilla Indians to manage over 2,500
acres of land that have special cultural value to their people.
Vice Chairman Milanovich was first elected to the tribal
council in April of 2014, and served five consecutive terms as
a tribal council member. He was sworn in as vice chairman on
November 5th of 2019. Prior to serving on the council, Mr.
Milanovich served on the board of directors for the Agua
Caliente cultural museum, and served on the tribe's scholarship
committee.
Mr. Milanovich is one of six siblings, and in fact, his
father Richard Milanovich served as tribal chairman for 28
years, until his passing in 2012. It was under the leadership
of the vice chairman's father that the effort began to reclaim
the land that is covered in my bill. Today, Mr. Milanovich is
here to make sure that we get the job done.
For generations, the Agua Caliente Band of Cahuilla Indians
have lived in what is now known as the Coachella Valley in the
San Jacinto Mountains. But the Federal Government divided up
the Agua Caliente's land into even and odd parcels that unknown
to this Committee cut up, known as a checkerboard. The
government allotted the even number parcels to Agua Caliente
and the odd number sections for the creation of a railroad. The
tribe's reservation was established in 1876, and it only
included a small portion of their traditional territories as a
result.
It wasn't until 1999 that the Bureau of Land Management and
Agua Caliente entered into an agreement to acquire and exchange
lands within what would become the Santa Rosa and the San
Jacinto Mountains National Monument. In 2000, Congress enacted
the decision to establish the monument, authorize the land
exchange, and consolidate the checkerboard of land ownership.
For 17 years, the Agua Caliente has worked with the Bureau
of Land Management to finalize an agreement, exchange the lands
that are addressed by this legislation. In March of 2019, the
land exchange was finalized. However, the 2000 law didn't
expressly address the status of land that was transferred to
the tribe. So the lands covered in this bill were not placed
into trust.
My legislation would correct that oversight and finally
place the exchanged land into trust as part of the Agua
Caliente Reservation. Enactment of this bill would conclude a
decades-long endeavor between the Agua Caliente Band of
Cahuilla Indians and the Federal Government to complete the
original 1999 agreement.
Vice Chairman Milanovich's father began the effort to
reclaim this land in the late 1990s. And here we are, more than
20 years later, with the Vice Chairman here to help push this
multi-generational effort over the finish line, and finally
allow the tribe to manage their ancestral lands.
Thank you, Mr. Chairman, and Ranking Member Murkowski.
The Chairman. Thank you very much.
Our final witness is Kathryn Isom-Clause, the Deputy
Assistant Secretary for Indian Affairs at the Department of
Interior. I want to remind our witnesses that we have your full
written testimony, and it will be made part of the official
record.
Please keep your statement to no more than five minutes, so
that members have time for questions. We will have a vote, or
two votes, at 3:30. So the tighter we can be, the quicker we
can pass these bills.
So we will start with Ms. Isom-Clause.
STATEMENT OF KATHRYN ISOM-CLAUSE, DEPUTY ASSISTANT SECRETARY,
INDIAN AFFAIRS, DEPARTMENT OF THE
INTERIOR
Ms. Isom-Clause. Good afternoon, Chairman Schatz, Vice
Chair Murkowski, and members of the Committee. My name is
Kathryn Isom-Clause, and I am Taos Pueblo. I serve as the
Deputy Assistant Secretary for Policy and Economic Development
for Indian Affairs at the U.S. Department of the Interior.
Thank you for the opportunity to present the department's
views on the bills to be considered today.
Regarding S. 3123, in 1980, the Siletz Reservation Act
established a reservation land base for the Confederated Tribes
of Siletz Indians of Oregon. Section 4 of the Siletz Act
requires that a May 2nd, 1980 consent decree entered into
between the State of Oregon and Siletz to service the exclusive
and final determination of the tribe's and its members'
hunting, fishing, and trapping rights and that the
establishment of the Siletz Reservation does not grant or
restore any rights beyond the consent decree to the tribe or
its members.
S. 3123 amends Section 4 of the Siletz Act to provide a
process by which Siletz and the State may negotiate to amend or
replace the existing agreement defining the tribe's hunting,
fishing, gathering, and trapping rights. S. 3123 also provides
a vital step forward to allow Siletz to come to a new agreement
with the State that may permit the tribe to exercise their
traditional rights more fully as well as manage hunting,
fishing, gathering, and trapping on their lands.
Regarding S. 3126, in 1988, the Grand Ronde Reservation Act
established a reservation land base for the Confederated Tribes
of the Grand Ronde Community of Oregon. Section 2 of the Grand
Ronde Act states that the January 12th, 1987 consent decree
entered into between the State of Oregon and Grand Ronde serves
as the exclusive and final determination of the tribe's and its
members' hunting, fishing, and trapping rights, and that the
establishment of the Grand Ronde Reservation does not grant or
restore any rights beyond the consent decree to the tribe or
its members.
Similar to S. 3123, S. 3126 amends Section 2 of the Grand
Ronde Act to allow Grand Ronde to come to a new agreement with
the State that may permit the tribe to exercise their
traditional rights more fully. The Biden Administration and the
Department are committed to working with tribal governments to
protect and preserve traditional tribal hunting, fishing, and
gathering rights on tribal ancestral lands. To that end, the
department supports S. 3123 and S. 3126.
S. 3273 would confirm approximately 2,560 acres of land
owned by the Agua Caliente Band of Cahuilla Indians in
California as land held in trust for the benefit of the tribe.
This bill makes it clear that the land is a part of the tribe's
reservation. Additionally, the bill makes it clear that the
land is ineligible for gaming under the Indian Gaming
Regulatory Act. The tribe plans to manage the land, which is
within a national monument area, as conservation lands.
In 1999, the Bureau of Land Management and the tribe
entered into an agreement to acquire and exchange lands within
what would become the Santa Rosa and San Jacinto Mountains
National Monuments. In 2000, legislation was enacted to
facilitate the agreement. In March 2019, the lands transferred
to the tribe was finalized.
S. 3273 would simply confirm the land transfer and ensure
that the land is considered part of the tribe's reservation.
The department supports this bill.
S. 3381 would impose a series of statutory requirements on
the Bureau of Indian Affairs related to the processing and
review of mortgage packages. This legislation would codify
current processing deadlines for mortgages, require an annual
report to be submitted to Congress regarding the mortgages
reviewed by the Bureau, establish a realty ombudsman position
reporting directly to the Secretary, and provide access to the
Bureau's Trust Asset and Accounting Management System, or
TAAMS, for relevant agencies and tribes.
We appreciate Congress' shared interest in ensuring that
mortgage packages are reviewed and processed in a timely
manner. Notably, the mortgage application review and processing
deadlines in this legislation are reflected in the Bureau's
regulations, handbooks, and policy.
One specific concern the department has with S. 3381 is
that it would mandate read-only access to TAAMS for the
Departments of Agriculture, Housing and Urban Development, and
Veterans Affairs, as well as tribes. The Bureau currently
provides limited TAAMS access to tribes in relevant agencies
after the clearance of a background check. Access to TAAMS
should be contingent on IT security training and limited to
avoid Privacy Act and confidentiality issues.
The Department supports the intent of S. 3381 and looks
forward to working with the Committee to provide technical
assistance.
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 you may have.
[The prepared statement of Ms. Isom-Clause follows:]
Prepared Statement of Kathryn Isom-Clause, Deputy Assistant Secretary,
Indian Affairs, Department of the Interior
Introduction
Hello and good afternoon Chairman Schatz, Vice Chair Murkowski, and
members of the Committee. My name is Kathryn Isom-Clause, and I serve
as the Deputy Assistant Secretary for Policy and Economic Development
at Indian Affairs at the U.S. Department of the Interior (Department).
Thank you for the opportunity to present the Department's testimony
on S. 3123, a bill to amend the Siletz Reservation Act to address the
hunting, fishing, trapping, and animal gathering rights of the
Confederated Tribes of Siletz Indians, S. 3126, a bill to amend the
Grand Ronde Reservation Act to address the hunting, fishing, trapping,
and animal gathering rights of the Confederated Tribes of the Grand
Ronde Community, S. 3273, the Agua Caliente Land Exchange Fee to Trust
Confirmation Act, and S. 3381, the Tribal Trust Land Homeownership Act
of 2021.
S. 3123--A bill to amend the Siletz Reservation Act to address the
hunting, fishing, trapping, and animal gathering rights of the
Confederated Tribes of Siletz Indians, and for other purposes
In 1980, the Siletz Reservation Act (Siletz Act), P.L. 96-340,
established a reservation land base for the Confederated Tribes of
Siletz Indians of Oregon (Siletz or Tribe). Section 4 of the Siletz Act
requires that a May 2, 1980 consent decree entered into between the
State of Oregon and Siletz serve as the exclusive and final
determination of the Tribe's and its members' hunting, fishing and
trapping rights, and that the establishment of the Siletz Reservation
does not grant or restore any rights beyond the consent decree to the
Tribe or its members.
The May 2, 1980 consent decree provides that the Tribe has limited
locations and take amounts for salmon fishing and deer and elk hunting,
no special trapping rights, limited gathering rights, and an option to
obtain annual amounts of State-furnished salmon, deer, and elk. The
consent decree otherwise prohibits Tribal hunting, fishing, gathering,
and trapping activities except as authorized under Oregon State law.
S. 3123 amends Section 4 of the Siletz Act to allow the April 22,
1980 agreement between the State, the Tribe, and the United States
defining the Tribe's hunting, fishing and trapping rights to be amended
or replaced upon mutual agreement of the Tribe and the State. Upon the
State and the Tribe coming to a new or amended agreement, S. 3123
provides that the Tribe and the State may return to Oregon Federal
District Court to request the modification or termination of the May 2,
1980 consent decree currently in effect.
S. 3123 will provide a process by which Siletz and the State may
negotiate to amend or replace the existing agreement defining the
Tribe's hunting, fishing, gathering, and trapping rights. The bill will
allow for Siletz to negotiate their rights to hunt, fish, and trap
throughout their ancestral homelands. S. 3123 also provides a vital
step forward to allow Siletz to come to a new agreement with the State
that may permit the Tribe to exercise their traditional rights more
fully as well as manage hunting, fishing, gathering and trapping on
their lands. The Biden Administration and the Department are committed
to working with tribal governments to protect and preserve tribal
traditional hunting, fishing, and gathering rights on tribal ancestral
homelands. To that end, the Department supports S. 3123.
S. 3126--A bill to amend the Grand Ronde Reservation Act to address the
hunting, fishing, trapping, and animal gathering rights of the
Confederated Tribes of the Grand Ronde Community, and for other
purposes
In 1988, the Grand Ronde Reservation Act (Grand Ronde Act), P.L.
100-425 established a reservation land base for the Confederated Tribes
of the Grand Ronde Community of Oregon (Grand Ronde or Tribe). Section
2 of the Grand Ronde Act states that the January 12, 1987 consent
decree entered into between the State of Oregon and Grand Ronde serves
as the exclusive and final determination of the Tribe's and its
members' hunting, fishing, and trapping rights, and that the
establishment of the Grand Ronde Reservation does not grant or restore
any rights beyond the consent decree to the Tribe or its members.
The January 12, 1987 consent decree provides that Tribal members
may fish using Tribal, rather than State, permits in limited
geographical areas during State-law fishing seasons, as well as a
limited right to hunt deer, elk, and bear in limited geographical
areas. The Tribe has no special trapping rights, limited gathering
rights, and an option to obtain annual amounts of State-furnished
salmon. The consent decree otherwise prohibits Tribal hunting, fishing,
gathering, and trapping activities except as authorized under Oregon
State law.
S. 3126 amends Section 2 of the Grand Ronde Act to allow the
December 2, 1986 agreement between the State, the Tribe, and the United
States defining the Tribe's hunting, fishing, and trapping rights to be
amended or replaced upon mutual agreement of the Tribe and the State,
and allows for the Tribe and the State to return to Oregon Federal
District Court to modify or terminate the January 12, 1987 consent
decree based on a new or amended agreement.
S. 3126 provides an opening for negotiation between the State and
Grand Ronde regarding Grand Ronde's rights to hunt, fish, gather, and
trap in their ancestral homelands. It also allows for Grand Ronde to
come to a new agreement with the State that may permit the Tribe to
exercise their traditional rights more fully as well as manage hunting,
fishing, gathering and trapping on their lands. The Biden
Administration and the Department are committed to working with Tribal
governments to protect and preserve Tribal traditional hunting,
fishing, and gathering rights on Tribal ancestral homelands. To that
end, the Department supports S. 3126.
S. 3273--Agua Caliente Land Exchange Fee to Trust Confirmation Act
S. 3273 would confirm approximately 2,560 acres of land owned by
the Agua Caliente Band of Cahuilla Indians (Tribe) in California as
land held in trust for the benefit of the Tribe. This bill makes it
clear that the land is a part of the Tribe's reservation. Additionally,
the bill makes the land ineligible for gaming under the Indian Gaming
Regulatory Act (25 U.S.C. 2701 et seq.). The Tribe plans to manage
the land--which is within a national monument area--as conservation
lands.
In 1999, the Bureau of Land Management and the Tribe entered into
an agreement to acquire and exchange lands within what would become the
Santa Rosa and San Jacinto Mountains National Monument, and in 2000,
legislation was enacted to facilitate the agreement. In March 2019, the
land transfer to the Tribe was finalized. S. 3273 would simply confirm
the land transfer and ensure the land is considered part of the Tribe's
reservation. The Department supports this bill.
S. 3381--Tribal Trust Land Homeownership Act of 2021
S. 3381 would impose a series of statutory requirements on the
Bureau of Indian Affairs (Bureau) related to the processing and review
of mortgage packages. This legislation would codify current processing
deadlines for mortgages; require an annual report to be submitted to
Congress regarding the mortgages reviewed by the Bureau; establish a
Realty Ombudsman position reporting directly to the Secretary; and
provide access to the Bureau's Trust Asset and Accounting Management
System (TAAMS) for relevant agencies and tribes.
We appreciate Congress' shared interest in ensuring that mortgage
packages are reviewed and processed in a timely manner. Notably, the
mortgage application review and processing deadlines in this
legislation are reflected in the Bureau's existing handbooks and
policy.
One specific concern the Department has with S. 3381 is that it
would mandate read-only access to TAAMS for the Department of
Agriculture, Department of Housing and Urban Development, and
Department of Veterans Affairs, as well as tribes. The Bureau currently
provides limited TAAMS access to tribes and relevant agencies after the
clearance of a background check. Access to TAAMS should be contingent
on IT security training and limited to avoid Privacy Act issues.
The Department supports the intent of S. 3381 and looks forward to
working with the Committee to provide technical assistance.
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.
Next, we have the Honorable Delores Pigsley, the Chairman
of the Confederated Tribes of Siletz Indians in Oregon,
virtually.
STATEMENT OF HON. DELORES PIGSLEY, CHAIRMAN, CONFEDERATED
TRIBES OF SILETZ INDIANS
Ms. Pigsley. Thank you, and it is my pleasure to be able to
be here to testify on Senate Bill 3123. My name is Delores
Pigsley. I am the Tribal Chairman for the Confederated Tribes
of Siletz Indians of Oregon. I represent over 5,500 tribal
members.
As you know, our tribe was terminated back in 1954,
restored in 1977. It was a very difficult time back in 1975
when the tribe was trying to be restored. We were treated very
badly by the State of Oregon. We once had a one-million-acre
reservation in 1855 that dwindled down to practically nothing.
In order to get the land back during restoration, we had to
agree to hunting and fishing rights, they gave us absolutely no
subsistence rights, or no way to gather and to continue
hunting. Because our tribe was terminated, many of our members
still did, still practiced hunting, fishing, and helping to
feed the community. They were arrested, jailed, and sometimes
given high fines for what they were doing.
That brings us to today. Our Congressional leaders, the
Governor, and the State of Oregon recognized the wrong. This is
an opportunity to right that wrong. The Siletz tribal members
were raised on deer and elk and seafood. We always fed our
families based on the community need. We hunted, fished, and
shared all those foods.
Today, we are regulated with all of our hunting and fishing
and gathering rights with the State of Oregon. The only
unlimited right we have is to gather mussels. Families do that,
and they share the food with those communities, just like they
have always done in the past.
The tribes before you today, Siletz and Grand Ronde, are
the only tribes in the United States that were forced to agree
to give up a sovereign right in order to be restored and have
those small reservations created. It has been a disastrous
policy for Siletz, as far as termination, restoration. It has
been 40 years trying to get these rights back.
All we want for Siletz is to be treated equally, like other
tribes, whether that is good or bad. We know there are bad
treatments. But we are in this to establish equal rights for
our tribe in order to be able to hunt and fish and gather as we
traditional did for time immemorial.
We look forward to the opportunity to answer any questions.
This has been a long process, and we are very hopeful that this
group will be able to support the legislation to recognize our
rights, and to give us back those rights that we lost.
We thank you.
[The prepared statement of Ms. Pigsley follows:]
Prepared Statement of Hon. Delores Pigsley, Chairman, Confederated
Tribes of Siletz Indians
My name is Delores Pigsley and I am Chairman of the Tribal Council
for the Confederated Tribes of Siletz Indians. My tribe is a
confederation of all the bands and tribes of western Oregon that were
removed to the Siletz Reservation. If still intact, this reservation
would be the largest in Oregon at over 1 million acres.
In 1954, Congress terminated federal recognition of the Siletz
Tribe and all of its antecedent bands and tribes. In 1977, Congress
restored federal recognition to Siletz. While we were the first tribe
in Oregon to be restored, and the second in the nation, it came at a
very high price.
Restoration by Congress
Siletz' restoration effort coincided with the Indian ``fishing
wars'' on the Columbia River and in Washington State--where federal
courts were upholding Indian treaty fishing rights. The Oregon
Department of Fish & Wildlife (ODFW) joined other states in asking
Congress to overturn these court decisions at a national level.
Similarly, ODFW opposed Siletz' restoration and insisted that the newly
restored Siletz Tribe give up its hunting/fishing rights to become
restored and to obtain a small reservation.
The original discussion draft of a Siletz Restoration Act
circulated by the Tribe in 1975 would have restored tribal hunting/
fishing rights. However, ODFW objected to this language and Siletz
adopted neutral language that neither granted nor diminishes any tribal
hunting right. This would have left any hunting/fishing right that
survived termination unaffected. A year later, the House Report on the
Siletz Restoration Act discussed this language:
``Finally, the committee wishes to emphasize the intent of the
legislation to be neutral on the question of hunting and
fishing rights for the Siletz Tribe. If the Siletz Tribe had a
treaty or other special hunting or fishing right which was
terminated by the termination Act of August 13, 1954 (69 Stat.
724), this legislation does not restore such right. If the
Siletz Tribe had such a special right prior to termination
which survived the Termination Act, this legislation does not
abrogate or impair such a right.'' \1\
---------------------------------------------------------------------------
\1\ H.R. Report No. 623, 95th Congress, 1st Session; September 23,
1977; House Committee on Interior & Insular Affairs
At this point, ODFW accelerated its opposition to the Siletz
Restoration Act--and insisted that Congress expressly extinguish any
pre-existing hunting/fishing rights Siletz might still have. This would
have engendered national tribal opposition; and what ODFW didn't
achieve in the actual Restoration Act, it achieved in the Consent
Decree. Moreover, in 1976, ODFW even proposed alternative legislation
that would have made individual Siletz Indians eligible for federal
Indian benefits/services, but would not have restored the Siletz Tribe
itself.
ODFW also objected to the restoration of a Siletz Reservation
because of the State's fear of tribal exercise of sovereignty over its
own land. The restoration act was eventually amended to eliminate the
specific creation of a reservation for Siletz and did not itself
restore any land to Siletz. Instead, the Restoration Act called for a
two-year study followed by congressional action before a reservation
could be created.
With changes made to accommodate ODFW, Congress passed the Siletz
Restoration Act on November 18, 1977. The final legislative language on
hunting/fishing reads:
``This Act shall not grant or restore any hunting, fishing, or
trapping right of any nature, including any indirect or
procedural right or advantage, to the tribe or any member of
the tribe, nor shall it be construed as granting, establishing,
or restoring a reservation for the tribe.''
Negotiating the Siletz Reservation Act
Following congressional restoration, the Siletz Tribe adopted a
constitution, elected a tribal governing body and began focusing on
establishment of a reservation so it could assume full status as a
federally recognized tribe.
As parties negotiated the creation of a reservation for Siletz--the
study of which was authorized in the Restoration Act--ODFW continued
its demand for the extinction of the Siletz Tribe's hunting/fishing
rights. It even suggested monetizing the Tribe's rights and having the
federal government forcibly buy those rights and compensate tribal
members.
Other state agencies appeared to agree on legislative language that
included a neutrality clause that did not grant any new hunting/fishing
rights but left any pre-existing hunting/fishing rights for future
determination, if ever. The Oregon Attorney General had determined that
the Siletz Tribe probably maintained pre-termination hunting rights on
at least the land it still possessed at the time of termination. The AG
wrote that while the Reservation Act (as drafted) would not create any
new rights, ``any pre-existing rights would continue to exist.''
Based on fear of constituent backlash, Rep. Les AuCoin (D-OR)
blocked passage of the Reservation Act until ODFW agreed with the
extent of Siletz hunting/fishing rights, giving it a veto over those
rights. Siletz' hunting/fishing rights were essentially terminated.
This ultimately led to Siletz being forced to a near-total
extinguishment of its hunting/fishing rights as a condition to
obtaining a small reservation.
The result was a hunting/fishing agreement between Siletz and the
State of Oregon. It allows the Tribe to only take up to 200 salmon a
year for cultural and subsistence purposes, and bans tribal members
from exercising even these limited rights on the main-stem Siletz River
because tribal members' presence and fishing might offend or anger non-
Indian fishers. The agreement also allows for the Tribe's annual
harvest of up to 25 elk and up to 400 deer (minus the number of elk
taken).
Federal Court Decree and Order
Siletz Tribe v. Oregon (Civil No. 80-422 [May 2, 1980]) was the
result of a ``friendly'' lawsuit between the parties, which ODFW
insisted on to make the Agreement it demanded beyond challenge. The
court order/decree enshrines the hunting/fishing agreement entered into
between the State and Siletz Tribe (dated April 22, 1980). The original
agreement was drafted by ODFW and makes it difficult or impossible to
amend or overturn:
``[The Siletz Tribe and its members] are hereby permanently
enjoined from asserting or prosecuting any claim for tribal
[hunting/fishing rights] of said Tribe or its members other
than as such rights are specified and limited by the terms of
said Agreement.''
Siletz Reservation Act [P.L. 96-340 [1980])
In addition to the court order/decree, the hunting/fishing
agreement with the State of Oregon was also codified into the Siletz
Reservation Act passed by Congress later in 1980:
``The establishment of the Siletz Reservation or the addition
of lands to the reservation in the future, shall not grant or
restore to the tribe or any member of the tribe any new or
additional hunting, fishing, or trapping right of any nature,
including any indirect or procedural right or advantage, on
such reservation beyond the rights which are declared and set
forth in the final judgment and decree of the United States
District Court for the District of Oregon, in the action
entitled Confederated Tribes of Siletz Indians of Oregon
against State of Oregon, entered on May 2, 1980. Those rights
as declared and set forth in the May 2,1980, final judgment and
decree shall constitute the exclusive and final determination
of all tribal rights to hunt, fish, or trap that the Siletz
Tribe or its members possess.''
This provision impedes the Siletz Tribe from exercising any treaty
hunting/fishing rights that it may possess and has never given up.
Recently the Governor of Oregon and ODFW have agreed that this
original 1980 hunting/fishing agreement is unconscionable and contrary
to the State's policy to acknowledge and recognize tribal rights. The
State supports the Tribe's efforts to overturn the 1980 Agreement and
replace it with a more equitable agreement.
Siletz Tribe's Legislative Request
There are three components of the Siletz Tribe's effort to overturn
its 1980 Consent Decree:
1. Rescinding Language in the Siletz Reservation Act that
Incorporates the 1980 Consent Decree.
The 1980 Siletz Reservation Act incorporates the Consent Decree
into the legislation and states that it is the final statement of
Siletz HFT&G Rights. This makes that legislation independent authority
on the Tribe's HFT&G Rights, over and above the federal court Consent
Decree. Therefore the Tribe needs to have this legislative language
rescinded to overturn its 1980 Consent Decree. S. 3123 strikes the
relevant provision from the 1980 Siletz Reservation Act, P.L. 86-340.
2. Replacing the 1980 HFT&G Agreement with A Different
Arrangement.
The Siletz Tribe has already drafted a proposed replacement
agreement--to be entered into with the State--and has been discussing
the language of that draft with ODFW and various stakeholders. S. 3123
protects the interests of other parties by providing that the 1980
HFT&G Agreement does not go away until a new Agreement has been
finalized and approved by ODFW.
3. Vacating the 1980 Federal Court Consent Decree.
Congress cannot directly overturn a previous federal court decree
and judgment. The State of Oregon, the United States--as trustee for
the Siletz Tribe, and the Siletz Tribe were parties to the original
court decree and will have to approach the federal court together to
vacate that decree. The Tribe is in discussions with the State and
federal government to jointly petition the federal court to vacate the
1980 Consent Decree under FRCP 60(b)(6) and believes the State and
federal government will support that effort, but that is ultimately the
discretionary decision of those governments. S. 3123 provides only that
if such a petition is filed, the federal court can consider that
petition without first having to address technical legal obstacles such
as res judicata that might limit the court's authority to entertain the
joint petition. This limited legislative approach has been upheld by
the Supreme Court in the 1980 Sioux Nation decision.
Support for legislation
The Siletz Tribe has been in active discussions with the State of
Oregon regarding a potential replacement agreement. We believe that the
State is supportive of this legislation and allowing a process for
Siletz to determine its hunting and fishing rights.
We have also had extensive government-to-government discussions
with the Confederated Tribes of Warm Springs, the Confederated Tribes
of the Grand Ronde Community of Oregon and the Confederated Tribes of
the Umatilla Indian Reservation regarding this legislation.
We are insistent that any replacement agreement after enactment
respect the rights of other tribes and not negatively impact them.
The Siletz Tribe is deeply grateful to the support from our
congressional delegation to right this historic wrong.
The Chairman. Thank you very much for your testimony.
Next, we have the Honorable Cheryle Kennedy, the Chairwoman
of the Confederated Tribes of the Grand Ronde in Oregon.
STATEMENT OF HON. CHERYLE KENNEDY, CHAIRWOMAN, CONFEDERATED
TRIBES OF GRAND RONDE
Ms. Kennedy. Good afternoon, everyone. I want to thank the
Committee for this opportunity to present testimony before you
today. I just for the record want to state that we have
provided written comments, along with letters of support from
two western Oregon tribes, and our two local county
governments.
Thank you, Chairman Schatz, Vice Chairman Murkowski, and
members of the Committee. My name is Cheryle Kennedy. I am the
tribal council chairwoman of the Confederated Tribes of Grand
Ronde in Oregon. Our tribe is located on the Grand Ronde
Reservation in Polk and Yamhill Counties.
Before I present my testimony, I want to thank Senator
Merkley for his generous introduction. Grand Ronde has worked
with the Senator for many years. Both our Council and our
tribal members are grateful for the longstanding partnership
that we have developed with him.
Grand Ronde appreciates the opportunity to testify today in
support of S. 3126, which would amend the Grand Ronde
Reservation Act to address hunting and fishing issues involving
our Tribe. Before you is a similar bill that Grand Ronde also
supports, S. 3123, which addresses the same hunting and fishing
issues involving the Confederated Tribes of Siletz Indians.
The objectives of these two bills are very simple. They
would permit both Tribes to negotiate new hunting and fishing
agreements with the State of Oregon. In place today are Grand
Ronde and Siletz hunting and fishing agreements with the State
that are more than 35 years old. These agreements have
provisions in them that prohibit any amendments or
modifications. These two bills simply authorize a process to
permit Grand Ronde and Siletz to amend these older agreements
and negotiate updated hunting and fishing arrangements that
meet the needs of both the State of Oregon and the Tribes.
I am sure you are curious about why Grand Ronde and Siletz
are the only tribes in the Country that are not able to
negotiate hunting and fishing issues with the State in which
their respective reservations are located. Here is the history.
In 1954, both tribes were terminated by Congress, along
with other tribes in western Oregon. In the 1980s, Congress
reversed itself and legislatively restored both tribes. At that
time, the Congress was considering these measures, the State of
Oregon demanded that each tribe sign a permanent agreement with
significant restrictions on their hunting and fishing and
rights. Only then would the State support Congressional
legislation to return to the tribes a small part of their
historic land base.
Grand Ronde leaders were left with no choice but to sign
such an agreement. I was on the tribal council during this time
and agreed with other tribal members to believe that this
bargain with the State was one made with a gun to our heads.
The 1970s and 1980s were a time when the Oregon tribes and the
State were frequently at odds on hunting and fishing issues.
Oregon tribes had achieved victories in several tribal hunting
and fishing lawsuits, and the State was frustrated with its
loss in Federal court. Over several decades now, the tribal-
State relationship has improved dramatically.
In particular, Grand Ronde has been recognized by the
Oregon Department of Fishing and Wildlife as an exceptional
land manager and worked diligently and successfully to restore
critical wildlife habitat in western Oregon. These
accomplishments have been achieved while working under the
unwieldy regulatory framework established in the tribe's 1986
agreement with the State.
These circumstances have changed significantly over the
years, the past 30 to 40 years. The tribe would like to have
the ability to amend and modernize our hunting and fishing
agreements with the State of Oregon. This will only occur if
the Grand Ronde and Siletz Reservation Acts are amended.
The proposed legislation does not mandate or recommend
specific hunting and fishing terms, and any new agreement
between the State and tribes. Instead, both bills would amend
each tribe's restoration act to permit these 1980 and 1986
hunting agreements to be replaced, amended, or otherwise
modified through new agreements between government and
government. Once our new hunting and fishing agreements are
executed, the legislation contemplates that the State and the
tribe would return to the Federal court to request the
termination or modification of the consent decree currently in
place. A provision of this bill facilitates that process.
This proposed legislation also states that these
reservation act amendments do not alter or change treaty rights
of any other Indian tribes.
We urge your support for the passage of this bill today. We
are open and available for any comments or questions you might
have. Thank you.
[The prepared statement of Ms. Kennedy follows:]
Prepared Statement of Hon. Cheryle Kennedy, Chairwoman, Confederated
Tribes of Grand Ronde
Chairman Schatz, Vice Chairman Murkowski, and Members of the
Committee, my name is Cheryle Kennedy and I am the Tribal Council
Chairwoman of the Confederated Tribes of Grand Ronde (``Grand Ronde''
or ``Tribe''). Our Tribe is located on the Grand Ronde Reservation in
Polk and Yamhill Counties within the State of Oregon.
Before I present my testimony, please let me take a moment to thank
Senator Merkley for his generous introduction. Grand Ronde has worked
with the Senator for many years now and both our Council and our tribal
members are grateful for the long-standing partnership we have
developed with him.
Grand Ronde appreciates the opportunity to testify today in support
of S. 3126, which would amend the Grand Ronde Reservation Act to
address hunting and fishing issues involving our Tribe. Before you is a
similar bill that Grand Ronde also supports, S. 3123, which addresses
the same hunting and fishing issues involving the Confederated Tribes
of Siletz Indians (``Siletz'').
The objectives of these two bills are very simple. They would
permit both Tribes to negotiate new hunting and fishing agreements with
the State of Oregon. In place today are Grand Ronde and Siletz hunting
and fishing agreements with the State that are more than 35 years old.
These agreements have provisions in them that prohibit any amendments
or modifications. In other words, these are permanent agreements that
cannot be changed. S. 3126 and S. 3123 simply authorize a process to
permit Grand Ronde and Siletz to amend these older agreements and
negotiate updated hunting and fishing arrangements that meet the needs
of both the State of Oregon and the Tribes.
I am sure you are curious about why Grand Ronde and Siletz are the
only Tribes in the country that are not able to negotiate hunting and
fishing issues with the state in which their respective reservations
are located. Here is the history.
In 1954, both Tribes were terminated by Congress, along with other
tribes in western Oregon. \1\ In the 1980's, Congress reversed itself
and legislatively restored both Tribes. The Siletz were first, restored
by the Siletz Indian Tribe Restoration Act in 1977. \2\ Congress then
passed the Grand Ronde Restoration Act in 1983. \3\ These two
enactments restored Federal recognition to both Tribes and re-applied
the Indian Reorganization Act and other federal laws of general
applicability to both Tribes and their members.
---------------------------------------------------------------------------
\1\ Public Law 83-588 (Aug. 13, 1954), originally codified at 25
U.S.C. 691, et seq.
\2\ Public Law 95-195 (Nov. 18, 1977), originally codified at 25
U.S.C. 711, et seq.
\3\ Public Law 98-165 (Nov. 22, 1983), originally codified at 25
U.S.C. 713, et seq.
---------------------------------------------------------------------------
Both the Siletz and Grand Ronde Restoration Acts required that the
reservations for both Tribes would be re-established by subsequent
Congressional legislation. After each Tribe developed a Reservation
Plan with local and State input, Congress passed the Siletz Reservation
Act in 1980, \4\ and the Grand Ronde Reservation Act in 1988. \5\ At
the time that Congress was considering these measures, the State of
Oregon demanded that each Tribe sign a permanent agreement with
significant restrictions on their hunting and fishing rights. Only then
would the State support Congressional legislation to return to the
Tribes a small part of their historic land base.
---------------------------------------------------------------------------
\4\ Public Law 96-340 (Sept. 4, 1980), originally codified at 25
U.S.C. 711e note.
\5\ Public Law 100-425 (Sept. 9, 1988), originally codified at 25
U.S.C. 713f note.
---------------------------------------------------------------------------
The Siletz signed its hunting and fishing agreement in 1980. Six
years later, when faced with the alternative of either signing a
restrictive hunting and fishing agreement or receiving no reservation
land back, Grand Ronde leaders were left with no choice but to sign
such an agreement. I was on the Tribal Council during this time and I
agreed with other Tribal members who believed that this bargain with
the State was one made with ``a gun to our head.'' \6\
---------------------------------------------------------------------------
\6\ Ron Karten, ``Tribal Hunting & Fishing Rights,'' at 8, Smoke
Signals (Oct. 1, 2005).
---------------------------------------------------------------------------
For the record, let me now summarize the details of this unique
hunting and fishing regulatory framework.
The Siletz Hunting and Fishing Agreement
The Siletz executed their Hunting and Fishing Agreement in April of
1980. \7\ This Agreement contained language in multiple provisions
stating that this would be a permanent agreement that could not be
amended, even if circumstances changed over time. This Agreement was
approved by a Federal Court shortly thereafter and a Consent Decree was
issued by the Court on May 2, 1980. \8\
---------------------------------------------------------------------------
\7\ Agreement Among the State of Oregon, the United States of
America and the Confederated Tribes of Siletz Indians of Oregon to
Permanently Define Tribal Hunting, Fishing, Trapping, and Gathering
Rights of the Siletz Tribe and its Members (Apr. 22, 1980).
\8\ Confederated Tribes of Siletz Indians of Oregon v. State of
Oregon, No. 80-433 (D. Or. May 2, 1980) (final decree & order).
---------------------------------------------------------------------------
This Agreement was also ratified through Section 4 of the Siletz
Reservation Act, which incorporated the May 2 consent decree. \9\
Section 4 states that the Agreement and the consent decree ``shall
constitute the exclusive and final determination of all tribal rights
to hunt, fish, or trap that the Siletz Tribe or its members possess.''
\10\
---------------------------------------------------------------------------
\9\ Section 4 of Public Law 96-340 (Sept. 4, 1980).
\10\ Id.
---------------------------------------------------------------------------
The Grand Ronde Hunting and Fishing Agreement
When the Grand Ronde Reservation Act was under consideration by
Congress in 1986, the same process was used to define the hunting and
fishing rights of Grand Ronde and its members. The Grand Ronde Hunting
and Fishing Agreement was executed by the Tribe in December of 1986.
\11\ Except for the geographical areas covered, the Grand Ronde
Agreement is almost identical to the earlier Siletz Agreement. Like the
Siletz, this Hunting and Fishing Agreement was approved by a Federal
Court shortly thereafter and a Consent Decree was issued by the Court
on January 12, 1987. \12\
---------------------------------------------------------------------------
\11\ Agreement Among the State of Oregon, the United States of
America and the Confederated Tribes of the Grand Ronde Community of
Oregon to Permanently Define Tribal Hunting, Fishing, Trapping and
Animal Gathering Rights of the Tribe and its Members (Dec. 2, 1986).
\12\ Confederated Tribes of the Grand Ronde Community of Oregon v.
State of Oregon, No. 8_-___ (D. Or. Jan. 12, 1987) (final decree &
order).
---------------------------------------------------------------------------
Again, similar to Siletz, this Agreement was ratified through
Section 2 of the Grand Ronde Reservation Act, also incorporating the
January 12 Consent Decree. \13\ Section 2 of the Act states that the
Grand Ronde Agreement and the Consent Decree ``shall constitute the
exclusive and final determination of all tribal rights to hunt, fish,
and trap that the Confederated Tribes of the Grand Ronde Community of
Oregon or its members possess.'' \14\
---------------------------------------------------------------------------
\13\ Grand Ronde Reservation Act, Section 2, Public Law 100-425
(Sept. 9, 1988).
\14\ Id.
---------------------------------------------------------------------------
The 1970s and 1980s were a time when Oregon Tribes and the State
were frequently at odds on hunting and fishing issues. Oregon Tribes
had achieved victories in several tribal hunting and fishing lawsuits
and the State was frustrated with its losses in Federal courts. One
example of the State's hostility can be found in a 1975 news article
about Siletz restoration legislation being considered by Congress. \15\
When asked about these efforts, Oregon State Wildlife Director, John
McKean, responded by saying its ``Circle the wagons, boys, here they
come again.'' \16\
---------------------------------------------------------------------------
\15\ Pete Cornacchia, ``Poor who?'' Eugene Register-Guard (Nov. 25,
1975).
\16\ Id.
---------------------------------------------------------------------------
Over several decades now, the Tribal-State relationship has
improved dramatically. In particular, Grand Ronde has been recognized
by the Oregon Department of Fish and Wildlife as an exceptional land
manager and has worked diligently and successfully to restore critical
wildlife habitat in western Oregon. And these accomplishments have been
achieved while working under the unwieldy regulatory framework
established in the Tribe's 1986 agreement with the State. Every time we
work with the State on a new initiative, our tribal attorneys must find
a workaround to the 1986 Agreement--a time-consuming process. Likewise,
the State is forced to enact regulations to implement new tribal
arrangements, instead of simply amending a government-to-government
agreement with the Tribe.
1S. 3126 and S. 3123, Amendments to the Grand Ronde and Siletz
Reservation Acts
In the opinion of Grand Ronde and Siletz, and as described above,
both Tribes were forced into agreeing to the 1980 and 1986 Hunting and
Fishing Agreements, in order to secure approval of their Reservation
Acts. Circumstances have changed significantly over the past 35-40
years and the Tribes would like to have the ability to amend and
modernize their hunting and fishing agreements with the State of
Oregon. This can only occur if the Grand Ronde and Siletz Reservation
Acts are amended.
The proposed legislation does not mandate or recommend specific
hunting and fishing terms in any new agreements between the State and
the Tribes. Instead, both bills would amend each Tribe's Reservation
Acts to permit these 1980 and 1986 Hunting and Fishing Agreements to be
replaced, amended, or otherwise modified through new government-to-
government agreements between the Tribes and the State.
Once new hunting and fishing agreements are executed, the
legislation contemplates that the State and the Tribes would return to
Federal Court to request the termination or modification of the Consent
Decrees currently in place. A provision of this bill facilitates that
process.
The proposed legislation also states that these Reservation Act
amendments do not alter or change the treaty rights of any other Indian
Tribe.
Conclusion
On behalf of Grand Ronde, we hope the Members of the Committee on
Indian Affairs will support both of these bills and vote them favorably
out of Committee.
Thank you for the opportunity to present our Tribe's views on S.
3126 and S. 3123. I am happy to answer any questions that the Members
of the Committee may have.
The Chairman. Thank you very much, Chairwoman.
Next, we have the Honorable Reid Milanovich, the Vice
Chairman of the Agua Caliente Band of Cahuilla Indian Tribal
Council in Palm Springs, California.
STATEMENT OF HON. REID MILANOVICH, VICE CHAIRMAN, AGUA CALIENTE
BAND OF CAHUILLA INDIANS
Mr. Milanovich. Good afternoon, Chairman Schatz, and Vice
Chair Murkowski, and distinguished members of the Committee. My
name is Reid Milanovich, and I am the elected Vice Chairman of
the Agua Caliente Band of Cahuilla Indians. Thank you for the
opportunity to provide testimony on behalf of the tribe
regarding S. 3273, an act to take certain lands in California
into trust for the benefit of the Agua Caliente Band of
Cahuilla Indians and for other purposes.
First, I would like to thank Senators Padilla and Feinstein
for sponsoring S. 3273. The bill is a non-controversial
legislation that authorizes the United States to take
approximately 2,560 acres of land owned by the tribe into trust
and to make the lands part of the Agua Caliente Indian
Reservation.
On December 8th, 2021, the House of Representatives passed
H.R. 897 via suspension. H.R. 897 is the House counterpart to
S. 3273, and we hope the Senate will consider acting soon.
The ancestors of my tribe thrived in the deserts and
canyons of what is now known as the Coachella Valley. The Agua
Caliente Indian Reservation was established in 1876. The tribe,
based what has become the greater Palm Springs area, is a
historic Indian tribe that is a steward for thousands of acres
of our ancestral lands, spanning many city and county
jurisdictions.
The nearby Santa Rosa and San Jacinto Mountains National
Monument was established in 2000. The legislation establishing
the monument rightfully acknowledges the special cultural value
of the mountains to the tribe, including significant cultural
sites, village sites, and petroglyphs located there. The tribe
has worked hard to preserve the resources and values of our
mountains and has made significant contributions to the
cooperative management of these lands
The legislation establishing the national monument provided
land-exchange authorization that allowed the Bureau of Land
Management, BLM, and the Tribe to exchange federally owned
property for tribally owned property. However, due to a
drafting error the legislation did not expressly address the
status of any land transferred to the tribe through such an
exchange. The authorizing language should have included text
mandating that such exchanged lands be held in trust by the
United States for the exclusive benefit of the tribe.
BLM and the tribe worked for 17 years, from 2002 to 2019,
to finalize a Binding Exchange Agreement for these 2,560 acres
that are the subject of S. 3273. Through a consolidation
process of checkerboard land ownership in and around the
tribe's Reservation, the Exchange will allow for more logical
and consistent land management by the tribe and the BLM. Having
adjacent squares within the checkerboard allows tribal
management to be more efficient and provides for jurisdictional
consistency within a more manageable geographic area.
The Exchange lands now owned in fee status by the tribe
have longstanding cultural and natural resource value to the
Cahuilla people. Taking these lands into trust as part of the
reservation has been thoroughly vetted in the surrounding
community. Any concerns regarding public access have also been
addressed, and there is no known opposition to this
legislation.
The Tribe has a long-recognized history of maintaining
public access to trails within the monument boundary and will
continue this commitment to the lands in question. In fact,
changing or curtailing public access to trails on the land is
not feasible or practical, given its remote nature.
Finally, S. 3273 does not allow these remote lands to be
used for gaming purposes.
The lands at issue in S. 3273 are located within the
exterior boundaries of the Reservation and have longstanding
cultural and natural resources value to the Cahuilla people.
Making these lands part of the Reservation will allow for more
logical and consistent management by the tribe.
Thank you for your time and for the opportunity to testify
in support of S. 3273. I am happy to answer any questions that
you may have.
[The prepared statement of Mr. Milanovich follows:]
Prepared Statement of Hon. Reid Milanovich, Vice Chairman, Agua
Caliente Band of Cahuilla Indians
Good afternoon Chairman Schatz, Vice Chairman Murkowski, and
distinguished members of the Committee. My name is Reid Milanovich, and
I am the elected Vice Chairman of the Agua Caliente Band of Cahuilla
Indians (Tribe). Thank you for the opportunity to provide testimony on
behalf of the Tribe regarding S. 3273--an act to take certain lands in
California into trust for the benefit of the Agua Caliente Band of
Cahuilla Indians and for other purposes.
First, I would like to thank Senators Padilla and Feinstein for
sponsoring S. 3273. The bill is non-controversial legislation that
authorizes the United States to take approximately 2,560 acres of land
owned by the Tribe into trust for the Tribe and make those lands part
of the Agua Caliente Indian Reservation. The Tribe strongly supports S.
3273, and we urge you to support this bill as well. On December 8, 2021
the House of Representatives passed H.R. 897 via suspension. H.R. 897
is the House counterpart to S. 3273, and we hope the Senate will
consider acting soon to pass this important legislation that will allow
the Agua Caliente Band of Cahuilla Indians to improve management of its
wilderness areas.
To begin, I would like to share with you the history of these lands
and their importance to the Tribe. The ancestors of my Tribe thrived in
the desert and canyons of what is now known as the Coachella Valley.
The Agua Caliente Indian Reservation was established in 1876. The
Tribe--based in what has become the greater Palm Springs area--is a
historic Indian tribe that is a steward for thousands of acres of our
ancestral lands, spanning many city and county jurisdictions.
The nearby Santa Rosa and San Jacinto Mountains National Monument
was established in 2000. The legislation establishing the Monument
rightfully acknowledges the special cultural value of the mountains to
the Tribe, including significant cultural sites, village sites, and
petroglyphs located there. The Tribe has worked hard to preserve the
resources and values of our mountains and has made significant
contributions to the cooperative management of these lands. The Tribe
was a Member of the National Monument Advisory Committee, the National
Monument Management Plan Steering Committee, and participated in the
development of the National Monument Science Plan. Moreover, the Tribe
has provided interpretive panels for the Monument and sponsors an
annual festival for a non-profit which supports the Monument.
The legislation establishing the National Monument provided land-
exchange authorization that allowed the Bureau of Land Management (BLM)
and the Tribe to exchange federally-owned property for Tribally-owned
property. However, due to a drafting error the legislation did not
expressly address the status of any land transferred to the Tribe
through such an exchange. The authorizing language should have included
text mandating that such exchanged lands be held in trust by the United
States for the exclusive benefit of the Tribe. BLM and the Tribe worked
for 17 years, from 2002 to 2019, to finalize a Binding Exchange
Agreement (Exchange) for these 2,560 acres that are the subject of S.
3273. Through a consolidation of ``checkerboard'' land ownership in and
around the Tribe's Reservation, the Exchange will allow for more
logical and consistent land management by the Tribe and the BLM. Having
adjacent squares within the ``checkerboard'' allows Tribal management
to be more efficient and provides for jurisdictional consistency within
a more manageable geographic area. The Exchange lands now owned in fee
status by the Tribe have longstanding cultural and natural resource
value to the Cahuilla people. S. 3273 allows these Exchange Lands, now
owned by the Tribe, to be taken into trust and made a part of the
Tribe's Reservation.
Taking these lands into trust as part of the Reservation has been
thoroughly vetted in the surrounding community. Any concerns regarding
public access have also been addressed, and there is no known
opposition to this legislation. The Tribe has a long-recognized history
of maintaining public access to trails within the Monument boundary and
will continue this commitment to the Exchange lands in question. In
fact, changing or curtailing public access to trails on the land is not
feasible or practical, given its remote nature. Finally, S. 3273 does
not allow these remote lands to be used for gaming purposes.
In conclusion, the lands at issue in S. 3273 are located within the
exterior boundaries of the Reservation and have longstanding cultural
and natural resources value to the Cahuilla people. Making these lands
part of the Reservation will allow for more logical and consistent
management by the Tribe. Thank you for your time and for the
opportunity to testify in support of S. 3273. I am happy to answer any
questions that you may have.
The Chairman. Thank you very much.
Finally, we have Sharon Vogel, the Executive Director of
the Cheyenne River Housing Authority, in Eagle Butte, South
Dakota.
STATEMENT OF SHARON VOGEL, EXECUTIVE DIRECTOR, CHEYENNE RIVER
HOUSING AUTHORITY
Ms. Vogel. Thank you, Mr. Chairman, Madam Vice Chair, and
members of the Senate Committee on Indian Affairs. My name is
Sharon Vogel. I am the Executive Director of the Cheyenne River
Housing Authority in Eagle Butte, South Dakota, on the Cheyenne
River Sioux Reservation.
I appear today on behalf of the South Dakota Native
Homeownership Coalition to express our strong support for
Senate Bill 3381, the Tribal Trust Land Homeownership Act of
2021.
Before I begin, I would like to thank Senate Thune and his
staff for his leadership on this bill to promote homeownership
opportunities for Native people living on tribal land. I also
want to thank you, Mr. Chairman, along with Senators Thune,
Rounds, Smith, Tester, Cramer, Cortez Masto, and Warren, for
cosponsoring Senate Bill 2092, the Native American Rural
Homeownership Improvement Act of 2021, which would make the
very successful USDA 502 Relending Demonstration permanent and
authorize USDA to expand the program to Native communities
nationwide, including Native Hawaiian homesteads and Alaska
Native villages.
Our Native CDFI, Four Bands Community Fund, was able to
borrow $800,000 in capital from USDA, leverage it and re-lend
it to 11 eligible borrowers, totaling $1.2 million in loan
volume. The 11 loans deployed through this partnership in two
years was nearly four times as many mortgage loans as USDA
deployed on its own directly in the previous decade.
Four Bands has since documented a pipeline of nearly $7
million in mortgage financing without any marketing or
advertising. We are hearing similar levels of demand from the
Native CDFIs in our neighboring state of Montana, nearly $9
million. This is a powerful indication of the demand for
homeownership.
Accordingly, we urge Congress to enact Senate Bill 2092 to
make this important and much-needed source of capital available
to Native families in rural communities across Indian Country
as soon as possible.
One other word of recognition. I would like to thank
Senator Rounds and his staff for their hard work on reforming
the U.S. Department of Veterans Affairs Native American Direct
Loan Program.
Now I would like to talk about Senate Bill 3381. We
appreciate the emphasis this bill places on designing and
implementing the Bureau of Indian Affairs' processes in a way
that is compatible with private mortgage industry practices.
Native people should be able to enter mortgage transactions
just as any other citizen in this Country.
Unfortunately, that is not always the case due to the
delays and inconsistencies with the BIA processes. Senate Bill
3381 will go a long way to build on the momentum we are seeing
across Indian Country to increase the homeownership rates of
Native families. Overall, we applaud the legislation for
prioritizing the mortgage processes within the BIA and setting
a tone of accountability.
The following provisions have potential to offer great
solutions. The bill establishes timelines for review and
processing guidelines for mortgage related documents. It also
mandates an annual report to Congress about the volume of
mortgage package documents and whether the applicable timelines
were met. We appreciate the inclusion of this Congressional
oversight, and hope that it is adequate to ensure compliance
with these statutory requirements.
We strongly support the provision that would require BIA to
give tribes and Federal agencies read-only access to the Trust
Asset and Account Management System.
Another key element we are pleased to see is the
requirement for the first certified tribal status report to be
issued within 14 days. Receiving this document from the BIA has
varied widely by BIA regions from 30 days to 365 days or more
in many cases. We strongly support the bill's mandate for a GAO
study about the need and cost for the digitalization of
mortgage related documents. The BIA must modernize and enter
today's world of technology, so that it can provide timely
services to support homeownership transactions for Native
families.
Often, homebuyers on trust land feel like their mortgage
packages fall into a black hole somewhere within the depths of
BIA. Therefore, we strongly support the establishment of the
realty ombudsman to ensure compliance with timeframes and to
receive inquiries from tribal citizens, tribes, lenders, and
others. It will be important, however, for this position to
have the authority to take action where appropriate.
In conclusion, the South Dakota Native Homeownership
Coalition would like to offer one additional suggestion. As
Congress works toward enactment of this legislation, we
encourage the Committee to create an advisory group to work
with the BIA to identify antiquated leasing regulations that
are no longer needed due to the evolution of tribal governments
and sophistication of tribal borrowers. We hope the Committee
will consider amendments to authorize the creation of such an
effort.
Thank you for the opportunity to testify. We look forward
to working with each of you to improve homeownership
opportunities for Native people, wherever they may reside. I
would be happy to answer any of your questions.
Thank you.
[The prepared statement of Ms. Vogel follows:]
Prepared Statement of Sharon Vogel, Executive Director, Cheyenne River
Housing Authority
Introduction
Mr. Chairman, Madame Vice Chair, and members of the Senate
Committee on Indian Affairs, my name is Sharon Vogel. I am the
executive director of the Cheyenne River Housing Authority in Eagle
Butte, SD on the Cheyenne River Sioux Reservation. I appear today on
behalf of the South Dakota Native Homeownership Coalition to express
our strong support for S. 3381, the Tribal Trust Land Homeownership Act
of 2021.
I am also the Chairwoman of the United Native American Housing
Association (UNAHA), with 33 member tribally designated housing
entities (TDHEs) from the states of North and South Dakota, Nebraska,
Montana, Utah, Wyoming, and Colorado. In addition, I am serving my
first term on the Board of Directors of the National Low Income Housing
Coalition (NLIHC) and continue my service as a Board Member of the
National American Indian Housing Council (NAIHC).
Before I begin, I would like to thank Senator Thune and his staff
from my home state of South Dakota for his leadership on this bill to
promote homeownership opportunities for Native people living on tribal
land. Both of our South Dakota Senators--Senator Thune and Senator
Rounds--have visited the Cheyenne River Reservation many times and have
seen firsthand the challenges we have with providing safe and sanitary
housing for our tribal members. We are so appreciative that they both
recognize that any good housing development strategy in Indian Country
must include homeownership as a component.
I also want to thank you, Mr. Chairman, along with Senators Thune,
Rounds, Smith, Tester, Cramer, Cortez Masto, and Warren for co-
sponsoring S. 2092, the Native American Rural Homeownership Improvement
Act of 2021, which would make the very successful USDA 502 relending
demonstration permanent and authorize USDA to expand the program to
Native communities nationwide, including to Native Hawaiian Homesteads
and Alaska Native Villages. Two Native community development financial
institutions (Native CDFIs) participated in this $2 million
demonstration. One of them, Four Bands Community Fund, the Native CDFI
serving the Cheyenne River Reservation, was able to borrow $800,000 in
capital from USDA, leverage it with funds from the State of South
Dakota's Housing Opportunity Fund, and relend it to 11 eligible
borrowers, totaling $1,271,779.79 in loan volume. The 11 loans deployed
through this partnership in two years were nearly four times as many
mortgage loans as USDA deployed on its own directly in the previous
decade.
Since the completion of this pilot, Four Bands has documented a
pipeline of nearly $7 million in mortgage financing without any
marketing or advertising--all by word of mouth--a powerful indication
of the demand for homeownership in our small community of less than
12,000 tribal members and we are hearing similar levels of demand from
the Native CDFIs in our neighboring state of Montana--nearly $9
million. Accordingly, we urge Congress to enact S. 2092 to make this
important and much-needed source of capital available to Native
families in rural communities across Indian Country as soon as
possible.
One other word of recognition--I'd like to thank Senator Rounds and
his staff for their hard work on reforming the U.S. Department of
Veterans Affairs Native American Direction Loan program. At the request
of Senator Rounds and the Senate Veteran Affairs Committee, the
Government Accounting Office (GAO) is conducting a comprehensive review
of the barriers to homeownership for Native American veterans. We
anticipate that GAO will release its findings this spring, and we are
looking forward to assisting any legislative efforts that will follow.
Feedback on S. 3381
Now, I'd like to talk about S. 3381. We appreciate the emphasis
this bill places on designing and implementing the Bureau of Indian
Affairs' (BIA's) processes in a way that is compatible with private
mortgage industry practices. Native people should be able to enter
mortgage transactions just as any other citizen in this country.
Unfortunately, that is not always the case due to delays and
inconsistencies with the BIA's processes. As our trustee, the BIA has a
fiduciary duty to protect tribal land and prevent it from leaving its
trust status. However, this trust responsibility should not impede
tribal members' ability to utilize their property rights to achieve
their dreams of homeownership.
S. 3381 will go a long way to build on the momentum we are seeing
across Indian Country to increase the homeownership rates of Native
families. Overall, we applaud the legislation for prioritizing the
mortgage processes within the BIA and setting a tone of accountability.
The following provisions have the potential to offer some great
solutions:
1. Review and Processing Timeframes. The bill establishes
timelines for review and processing guidelines for leasehold
mortgages, right-of-way documents, land mortgages, and title
status reports (TSRs). It also mandates an annual report to
Congress about the volume of mortgage package documents and
whether the applicable timeframes were met. We appreciate the
inclusion of this congressional oversight and hope that it is
adequate to ensure compliance with these statutory
requirements. To date, the BIA's administrative Mortgage
Handbook (52 IAM 4-H) issued in 2019 sets out similar
timeframes, which have not been adhered to in many cases. We
recommend that the Congressional oversight committees monitor
compliance closely and consider more stringent enforcement
mechanisms, as appropriate.
2. TAAMs Terminals. We strongly support the provision that
requires BIA to give tribes and the federal agencies ``read
only'' access to Trust Asset and Accounting Management System
(TAAMS) terminals. It is critical for the BIA to take the steps
necessary to provide access to TAAMs terminals as expeditiously
as possible to ensure that mortgage processes are not
unnecessarily stalled. We were encouraged to hear the remarks
of Assistant Secretary for Indian Affairs Bryan Todd Newland
during his confirmation hearing last summer. He committed to
this Committee, in response to questions from Senator Daines,
to make TAAMs terminals available as quickly as possible,
including to tribes who have adopted their own leasing
processes under the Helping Expedite and Advance Responsible
Tribal Home Ownership Act of 2012 (HEARTH Act).
3. 1st Certified Title Status Report. Another key element we
are pleased to see is the requirement for the 1st certified TSR
to be issued within 14 days. Off reservation, county assessors'
records allow one to see title records within minutes, and
title policies are issued by title companies for underwriting
purposes usually within two to four weeks. Receiving comparable
documents from the BIA has varied widely by BIA Region from 30
days to 365 days or more in many cases. Lenders require
certified Title Status Reports to document title for
underwriting purposes. These reports are submitted to loan
underwriters along with the loan application and traditional
underwriting information. Requiring a 14-day timeline for
obtaining the 1st certified TSR moves the process one step
closer to the timing of the industry experiences on fee simple
land for home loan transactions.
4. GAO Study. We strongly support the bill's mandate for a GAO
study about the need and cost for digitization of mortgage
related documents. The BIA must modernize and enter today's
world of technology so that it can provide the appropriate
level of service necessary to support homeownership
transactions for Native families. We urge Congress to
appropriate the funds necessary to implement the findings of
the GAO study as quickly as possible.
5. Realty Ombudsman. Often, homebuyers on trust land feel like
their mortgage packages fall into a ``black hole'' somewhere
within the depths of the BIA. Therefore, we strongly support
the establishment of a Realty Ombudsman to ensure compliance
with timeframes and to receive inquiries from tribal citizens,
tribes, lenders, and tribal and federal agencies. It will be
important, however, for this position to have the authority to
take action where appropriate. For example, we would like to
see the Ombudsman have the authority to utilize automatic
waivers and assumed approval if timelines for reviewing
mortgage packages are not being met.
In conclusion, the South Dakota Native Homeownership Coalition once
again commends Senator Thune and his staff for introducing S. 3381, and
we would like to offer one additional suggestion. As Congress works
towards enactment of this legislation, we encourage the Committee to
create an advisory group to work with the Bureau of Indian Affairs to
identify antiquated leasing regulations that are no longer needed due
to the evolution of tribal governments and the sophistication of tribal
borrowers. We hope that the Committee will consider amendments to
authorize the creation of such an effort.
Thank you for the opportunity to testify. We look forward to
continuing to work with our South Dakota Senators, this Committee, and
all of Congress to improve homeownership opportunities for Native
people wherever they may reside.
I would be happy to answer any questions you may have.
The Chairman. Thank you very much, Ms. Vogel.
Ms. Isom-Clause, what is going on here? Why does it take up
to a year to do something that ought to take some number of
weeks, maybe a month?
Ms. Isom-Clause. Thank you for the question, Chairman
Schatz. Just to begin to answer, I want to recognize that, as
you know, homeownership on tribal lands contributes to the
well-being of tribal families as well as builds economies in
tribal communities. Assisting in homeownership is one of our
most important purposes in our mortgage approvals.
We agree that this process should be easy for homeowners on
tribal lands, and we want to----
The Chairman. Okay, so what is going on?
Ms. Isom-Clause. It is hard to answer your question
specifically, Chairman. I think there are a lot of complexities
dealing with the trust land, dealing with the many partners
involved in this.
The Chairman. Let's pretend it is just the two of us and we
are having a cup of coffee. Now, what is the deal? Is it that
there is a thicket of regulations that everybody feels they
have to follow? Is it training? Is it organizational culture?
Is it a lack of staff? What is the deal here?
Look, we are going to try to pass this bill. And we will
take your TA on the technical question of the TAAMS system. I
get all of that. But I am a little worried that we are going to
pass this bill and we are going to sort of congratulate
ourselves, we got the ombudsman and we got new shot clocks. And
we are going to be back here in five years with no improvement
to the actual operation of the generation of the documents that
people need to get a mortgage.
So what do we do? What is the problem?
Ms. Isom-Clause. Thank you, Chairman. I apologize for not
being more specific in the answer. We are looking at
comprehensive reform, is kind of the best way I can think of
it. We are not looking at this just in one silo of mortgage. We
are looking at our entire realty programs, how we can make this
more efficient overall.
We have tracking and trainings that we are implementing
with the mortgage approval processes specifically. That has
been a several years-long process. We are working on a new
inquiry portal, which allows for easier tracking, monitoring
and reporting that we expect to roll out in the next six months
that may be of assistance as well.
I think there may be kind of multiple ways we can attack
this problem. The department is committed to working with you
on that if there are ways to improve that further in the bill.
The Chairman. Well, but you have to execute the laws,
right? Under the Constitution, you have to execute. I am still
not satisfied that I know what your theory of the case is. If
you don't' know what your theory of the case is because it is a
relatively new Administration and you want to do some analysis
and get back to us, I will accept that.
But I would like, a shot clock and better visibility and
just sort of where your permit is or is not in the process.
That is all fine. But the foundational problem is, when you are
trying to generate a mortgage, you are in a hurry. If this is
the rate-limiting factor, and rates right now are going up. So
I am sure people are a little bit antsy while they sit there.
So let's just presume that this bill were already enacted.
So we have an ombudsman. We have a statute that now matches the
existing, I don't know if it is a rule or whatever, but it is
something that you are already trying to abide by, but not
meeting the mark. And then congratulations, now, person who
needs a mortgage, you get to know exactly where your thing is
in terms of its lateness, but it is not any less late.
I am not satisfied with your answer. I would rather you
say, we don't have an answer, and we are going to get back to
the Committee than just tell me that homeownership is
important, because we all stipulate to that. But you have to
execute on this. I am not satisfied that you have a plan.
Ms. Isom-Clause. Chairman Schatz, we will return to you
with a more specific plan on that. Thank you.
The Chairman. Thank you. Vice Chair Murkowski.
Senator Murkowski. Thank you, Mr. Chairman. I was hoping
you would get an answer so that I wouldn't have to ask my
question.
But let me reframe it just a little bit differently in
context with this Indian Affairs mortgage handbook. It was
August of last year in the Wall Street Journal, they described
the mortgage process on Indian lands as a ``byzantine
process.'' They went on to describe the approvals, the
applications that a potential homeowner on tribal lands has to
go through. Pretty torturous, actually.
Then the department came before, well, actually the
department came before this Committee in October of 2019, so
prior to that article, committed to improving the process on
the tribal lands. The Committee was provided with testimony
that BIA was making improvements to expedite the process via
updates to the mortgage handbook.
So here we are, two years after the department's assurances
to the Committee. We see the articles, obviously in the Wall
Street Journal, saying it doesn't look like there has been much
action here with regard to what was raised before the
Committee.
Specific to where we were the last time there was an update
before this Committee on where the department is on
implementing the reforms to the Indian Affairs mortgage
handbook, have you done that level of detail? Have those
reforms been implemented per your own handbook?
Ms. Isom-Clause. Thank you for the question, Vice Chair
Murkowski. Yes, I believe we have implemented the reforms to
our handbook. That is completed, to my knowledge.
Senator Murkowski. So, and not having the handbook to
reference, as the Chairman has noted, I am assuming that the
reason we put the reforms in the handbook was to actually get
to the root of the problem, which is, you have a byzantine
process that doesn't allow for the potential homeowners to
receive any kind of assurance that this process is going to be
efficient in any way.
So you say that you have implemented the reforms. I think
what would be helpful for us is for you to detail for the
Committee exactly what reforms have been addressed in
compliance with that handbook. So we will look forward to that.
You have also noted in your testimony that Interior cites a
privacy concern with tribes and some of the other Federal
agencies accessing the TAAMS data. But in 2019, the department
testified that the handbook update would allow the tribes and
HUD and anybody to get the data without having to actually get
into the system and go through the background checks and the IT
training that is required. So the legislation authorizes this
access.
The simple question is, why is the department raising
concerns with a policy that you seem to believe is needed, at
least according to what we heard from the department last time
they came before the Committee on this?
Ms. Isom-Clause. Thank you for the question, Vice Chairman
Murkowski. I believe that that is referring to the loan inquiry
portals, so it provides access to the information relevant to
that tribe or person inquiring without providing broader access
to other information that might be personally identifiable from
other tribes or other individuals.
So our testimony is specific to Privacy Act concerns
overall in the entire TAAMS system. But we do----
Senator Murkowski. You said that there was a read-only
policy for certain departments. So it is not system-wide?
Ms. Isom-Clause. Right. Well, there was the departments
that have loan programs, those were the ones that I mentioned.
But yes, I mean, we just have to follow the requirements.
You have a background check, and IT security training, and once
those are completed, if a tribe has a 638 contract or compact,
they can have the access they need for TAAMS, because they have
taken over that realty function for themselves.
Senator Murkowski. Mr. Chairman, this is really kind of
important here. We have, certainly you and I have prioritized,
and I think this Committee has prioritized housing for all
kinds of good reasons. It is concerning to me that to hear that
as we have prepared for this hearing, and as the department has
prepared for this hearing, there are no real answers here about
how we are going to have a better process. We might be able to
move legislation, hopefully the NAHASDA is going to go through,
but it seems to me that we need to have a little bit better
clarity as to the compliance within the department and the
agencies.
The Chairman. I was going to ask a quick question of Ms.
Isom-Clause. The concerns you have, could they be, do they need
to be fleshed out in statutory law? Or can we just give you the
authority? And obviously, we don't expect that a rank-and-file
tribal member from California can access someone else's
mortgage information in Minnesota or Hawaii. Nobody thinks that
is good public policy.
So I am happy to receive TA, but I also wonder whether this
belongs in statute or just in implementation. So I will leave
you with that question, because I do think there are legitimate
concerns that you are articulating. I am just not sure that we
are best equipped to figure out and be so proscriptive,
especially as the system is hopefully about to be changed,
right? We hope that you will clear out this thicket that
everybody has to go through so that you probably need resources
to execute. But you also just need a simpler process.
So I would hate to tie Federal statute to a process that is
about to change. I want to build in enough flexibility so that
if you fix this, then there is not a statute that doesn't hook
up with the rules. Let's work this through.
But I don't think anybody on this Committee or any of the
authors of this bill are suggesting that everybody should get
access to the whole data base. It is really more of an
accountability measure so that we can kind of figure out where
we are. If you can take that for the record.
Senator Smith is next, followed by Senator Rounds.
STATEMENT OF HON. TINA SMITH,
U.S. SENATOR FROM MINNESOTA
Senator Smith. Thanks, Chair Schatz, and Vice Chair
Murkowski.
First I just want to thank you for your work on
reauthorizing NAHASDA. Last summer, Senator Rounds and I
actually held a subcommittee hearing of the Banking and Housing
Committee on housing challenges in tribal nations.
Reauthorizing and strengthening NAHASDA was one of the top
issues that we heard about.
Ms. Vogel was one of the members of the panel for that
discussion. I am looking forward to coming to you in a minute
with a question. It is nice to see you again.
I just want to associate myself with the questions and the
pushing that both Vice Chair Murkowski and Chair Schatz are
doing on this question of how we get better results from the
department. Having worked on the Executive Branch side as well
as now on the Legislative Branch side, I know that we hear on
the Legislative side might feel great about passing laws that
ask the department to do things quicker. But it doesn't get to
the core question of why things aren't happening quicker now.
That is the tenor of the questions that I think Senator
Murkowski and Senator Schatz were asking on behalf of all of
us.
So let us, as a cosponsor of the legislation, let us be
your ally in trying to figure this out and making it work.
Also, accountability for making sure that this isn't just about
passing a law, this is about making sure that we actually get
better results for Native people who are trying to figure out
how to address the deep inequities around homeownership that we
see on tribal land.
Ms. Vogel, it is nice to see you again, as I said. I want
to go to this question and get your perspective on this
question on the legislation that I am working on with Senator
Thune and Senator Rounds and Senator Tester. We know that we
have this long timeline. We know that this has impacts on
people's ability to get mortgages, and it also has impacts on
lenders being willing to engage to make mortgages on tribal
land.
Can you just tell us a little bit about how improving these
processing times, making, which our Tribal Trust Land
Homeownership Act would do, can you just give us a sense of
what difference this would make, how this is going to help us
to address the underlying challenge of homeownership on tribal
lands?
Ms. Vogel. Thank you, Senator Smith, for that question. One
of the things that we always are looking for is to be able to
provide our tribal members with opportunity, more than one
lender to choose from, so that they have a menu. One of the
things that we have found is that in earlier years, it used to
be that finding a lender willing to make mortgages on trust
land was the challenge. It still is.
But that is starting to change with the movement
spearheaded by the Native CDFIs, the tribally owned banks, and
national lenders like First Tribal Lending.
One of the things that this bill will do for lenders is the
timelines identified in the legislation provide the lending
industry with assurances and dependability. Hopefully these
assurances will bring back more lenders into the market. This
is one of the reasons we lost some lenders from the HUD 184
loan guarantee program.
So reform is necessary. We know that processing the
documents is going to make a huge difference in a time
sensitive environment. Thank you.
Senator Smith. Thank you very much. Could I stay with you,
in the little bit of time I have left, I would love to hear
your on the ground practical take on why it matters to do the
NAHASDA reauthorization.
Ms. Vogel. Thank you for that question. Of course, I was
very excited to see the vote of the Committee earlier. Thank
you for that support.
Housing authorities, TDHEs, are really becoming
sophisticated. We are learning how to leverage, we are creating
a balance between rental and homeownership opportunities. So
being able to move forward is really important. The changes in
NAHASDA are really going to help us. They are going to open new
doors of opportunity. They are going to create opportunities
for new partnerships.
So on the ground, as a housing practitioner, I see many
opportunities to use the new NAHASDA changes to be able to
promote housing development in our reservation. Thank you.
Senator Smith. Thank you so much, Ms. Vogel. And thank you
again, Chair Schatz. I yield back.
The Chairman. Senator Rounds.
Senator Rounds. Thank you, Mr. Chairman.
I am going to go right back to Ms. Vogel for just a moment.
I would love to have her share with the Committee the challenge
with what happens when we try to actually get title or
permission to build a home on a reservation, what happens with
tribal trust. I think that is one of the major challenges we
have, is how do you have the expertise? Where does the
expertise come from?
Ms. Vogel, could you just briefly share the process that
you go through, who you talk to, and what really happens when
you ask for the information to provide a title or an
authorization, so that a person wanting a home can actually go
to a lender?
Ms. Vogel. Thank you for that question, Senator Rounds. I
am sure it is going to vary from reservation to reservation.
But here on Cheyenne River, when our borrower has reached that
point that they have decided on a piece of land, either they
own it or it is going to be a home site from the tribe, and
they receive their approval, then the next step is getting the
TSR. That is making sure, and we start at our agency office.
Senator Rounds. What is a TSR?
Ms. Vogel. It is a document that is really an important
document. It is the certified title status report. That
particular document is a requirement for anyone's mortgage loan
application. It shows that the borrower has authorization to
the land that they want to build their home on.
Senator Rounds. Who does that document come from?
Ms. Vogel. That comes from the Bureau of Indian Affairs.
Senator Rounds. Is that part of the challenge we have right
now, getting that authorization?
Ms. Vogel. Yes. There is some discussion around should
there be approval granted to the agency superintendent, so that
we don't have to go up to the area office, and at time maybe
even the headquarters.
So we are really looking forward to being able to have
discussions with the Bureau as they reform to really look at
what is working and what isn't working.
Senator Rounds. How long does it take to get that
authorization now? If you ask for it, or they ask for it as
part of the process, how long does it take before you get a
response back before you have to go follow up?
Ms. Vogel. If we are lucky, we can get it back in a month.
That is if we stay right on top of it. We try to work very hard
with our agency staff. But there have been times that it has
taken six months, and it has taken longer. That really stalls
out the mortgage loan process for that borrower. That is really
unfair to them. Because up to that point, they have done
everything that they needed to do to be able to move their
mortgage loan application to the lender in its final form.
Senator Rounds. How often does that happen, to have a delay
like that?
Ms. Vogel. Of six months or more?
Senator Rounds. More than 60 days.
Ms. Vogel. It is, well, unfortunately the land process does
take too long in a time sensitive environment. I would say that
almost 50 percent of our delays in the mortgage loan process
relate back to the timely processing and receiving appropriate
lease-mortgage documents regarding the land assignments.
Senator Rounds. And that basically shuts down the process
for that new home purchaser, doesn't it?
Ms. Vogel. Yes, it does. If they are in the final stages of
presenting their package to their lender, and they don't have
that required document, they don't go any further.
Senator Rounds. I was just thinking back, it seems to me
that we have had conversations, it is not just loans through a
commercial entity. What about another Federal agency such as
the VA? I believe that you and I have had discussions about the
challenges of getting a VA loan. Do you recall having a
discussion with me about the success of the Minneapolis region
with regard to the number of VA loans that were successfully
provided to Native Americans in terms of the upper Midwest?
Ms. Vogel. Yes, I do remember that conversation.
Senator Rounds. Would you share that story with us, please?
Would you please share that story?
Ms. Vogel. Our Native veterans definitely believed that a
home loan was something that would be an easy process for them,
that they knew that they had that opportunity to get the Native
American Direct Loan Program. When they started on their own,
it was not successful. We did not have veterans being able to
navigate that process.
As a result, we had frustrated veterans that would come to
us and say, I don't want to try that, because it takes too
long. I don't understand it, they keep changing loan officers.
So the success of the Native American Direct Loan Program did
not get off to a good start. For a number of years, there were
not loans being closed for Native American veterans.
So the Coalition started to advocate and see, what are the
problems. Of course, there were a host of problems. Now we have
learned, we, the TDHEs, housing practitioners, have learned the
process. So we have to be the advocates to be able to do the
loan packaging, to be able to walk them through the loan
process. Even then, right now we are working with one of our
tribal members that is, in fact he is the commander of our
American Legion here. We have been going on over a year trying
to close his loan and get the right documents through the St.
Paul office.
So it continues to be a frustrating process. I am hoping
that with your leadership that we will have some changes coming
soon.
Senator Rounds. Thank you very much.
Mr. Chairman, I apologize for going on on this thing. The
point I would like to make is, it is not just IHS that is
impacted by this, but it is because we can't get these trust
documents in an appropriate fashion. It impacts our veterans'
ability to get them as well. In fact, I believe this particular
St. Paul office for the VA actually won an award for the most
number of VA home mortgages issued in, I believe, 2018, in the
entire Nation, they had five. That tells us basically what the
challenge is here.
So I want to thank Ms. Vogel, because she has been a
champion on this. It really is time to get to the bottom of it.
The Chairman. Before I turn it over to Vice Chair Murkowski
for her second round of questions, I want to suggest that some
of the authors of this bill may want to get together. A
legislative strategy I think is appropriate. But there may be
room for a workshop, a couple of actual working meetings, and
doing real oversight and working with the Administration to get
to the bottom of this. I am not satisfied that we can enshrine
in statute what needs to be done. A lot of what needs to be
done is strategies, execution. We have to get to the execution
piece of this.
Vice Chair Murkowski.
Senator Murkowski. I do think there is recognition that
something has to be done. What we are dealing with is simply
not tenable.
I want to ask a quick question. This is to our witnesses
that have testified with regard to the Merkley bills, the
Siletz and Grand Ronde. This is to Chairman Kennedy and
Chairman Pigsley. Both of your tribes have indicated that your
work relationship with the State of Oregon has dramatically
improved. You are now implementing some conservation programs
and other work to help fulfill the tribes' subsistence needs.
This may be a general question, but I think it helps us on
the Committee. If you can share with us what you expect a new
agreement with the State to look like if you are successful in
being able to negotiate and replace the existing agreements.
Can you tell us whether or not co-management will be a part of
that new agreement? Explain where you think you might be there.
Ms. Pigsley. I will go ahead, Cheryle, if that is okay with
you.
Senator Murkowski. Certainly, go ahead.
Ms. Pigsley. We have worked extensively with ODFW, and we
are currently negotiating what our new relationship will look
like. We do co-manage right now. It gives us a greater
flexibility and ability to provide services to our membership,
but also to work with the State. We meet with them annually,
anyway.
So I believe it is a very good relationship and very
productive for us.
Senator Murkowski. Very good, thank you.
Ms. Kennedy. Thank you for the question. The escrow
management is part of the way that we view moving forward, as
stated. We do have a good working relationship with the State,
and the Oregon Fish and Wildlife Department. We have been able
to work through different issues, given the consent decree
being there.
We meet, as Chair Pigsley stated, regularly with the State.
We have dialogue with the governor once a month. We talk with
the Department of Fish and Wildlife probably more regularly
than that.
In Oregon, there is the Legislative Commission on Indian
Services that all of the tribes of Oregon participate in. That
gives us more opportunity to talk with the State of Oregon on
issues like this.
So yes, the relationship is good. As far as if you are
asking, what is the final document going to look like, that is
not in place. This will give us the opportunity to explore all
of those issues before us. We are thankful that you are able to
hear us today, and hopefully support the endeavors of our two
tribes.
Senator Murkowski. Thank you both.
Mr. Chairman, I know that we have a couple of votes that
are beginning. I want to thank the witnesses. I also want to
recognize the Vice Chairman here. We haven't peppered you with
questions, but know that we also appreciate your being here on
behalf of the Agua Caliente and speaking to Senator Padilla's
bill as well.
Thank you.
The Chairman. Thank you for being here in person, and I
assure you, not getting peppered with questions is a good
thing, not a bad thing. Just ask Ms. Isom-Clause.
[Laughter.]
The Chairman. If there are no more questions for our
witnesses, members may also submit follow-up written 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.
This hearing is adjourned.
[Whereupon, at 3:49 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of the Confederated Tribes of the Umatilla Indian
Reservation
Dear Honorable Chair Schatz and members of the Committee:
On behalf of the Confederated Tribes of the Umatilla Indian
Reservation (CTUIR), we write to express our positions on S. 3123 and
S. 3126 regarding the treatment of hunting and fishing activities of
the Confederated Tribes of Siletz Indians (Siletz) and the Confederated
Tribes of the Grand Ronde Community of Oregon (Grand Ronde). We
respectfully request that this letter be included in the record for the
February 16, 2022 hearing on these bills, and considered by the
Committee.
The recently introduced S. 3123 (Siletz) and S. 3126 (Grand Ronde)
would amend those tribes' restoration and/or reservation acts to allow
them to seek new agreements with the State of Oregon regarding their
tribal hunting and fishing activities, on- and off-reservation. While
we were not consulted by congressional offices prior to introduction of
these bills, we have had extensive conversations with Siletz regarding
its legislation and its intentions if enacted.
Siletz has been exceptionally transparent with us in the
development of its draft federal legislation, and the elements of the
co-management agreement with Oregon that it seeks as a replacement for
its current Consent Decree. Based on council-to-council and staff-level
conversations with Siletz, we reached an intertribal agreement for
protections of our interests at Willamette Falls. We also were provided
with the draft replacement agreement that Siletz would seek with the
State of Oregon, along with an opportunity to provide comments that
were incorporated by Siletz. Further, Siletz expressed its support for
our history and continued use of Willamette Falls. Therefore, we
support S. 3123 and Siletz's process for seeking improved hunting and
fishing access for its tribal members in Oregon.
The same cannot be said for Grand Ronde's approach. CTUIR has had
one government-to-government meeting with Grand Ronde on this subject
in which neither draft legislation nor a draft replacement agreement
was shared. When Grande Ronde finally did share a very rough draft
replacement agreement, we raised significant concerns about that
agreement. Grand Ronde refused to acknowledge our Tribe's history and
continued use of Willamette Falls as usual and accustomed fishing areas
under our Treaties, or under any other basis. Indeed, Grand Ronde
explicitly told the CTUIR that no assurances could be made with respect
to Willamette Falls. Further, Grand Ronde suggested that CTUIR, a
Treaty Tribe with reserved federal rights, should follow the process
that Grand Ronde used for fishing at Willamette Falls and put itself
under the jurisdiction of the State of Oregon. We also understand no
that formal or substantive meetings have taken place between other
concerned tribes and Grand Ronde on this matter.
How the Siletz and Grand Ronde replacement agreements made possible
by S.3123 and S. 3126 involve the Willamette Falls area is of great
concern. The Willamette River is a tributary of the Columbia River. The
CTUIR, along with its sister Columbia River Treaty Tribes, have long
claimed Willamette Falls as a usual and accustomed fishing area
reserved by our 1855 treaties, and we continue to use the Falls
annually for subsistence and ceremonial harvest. We have not claimed
exclusive fishing or gathering rights at Willamette Falls relative to
other tribes. Our conversations with the Siletz Tribe have given us
confidence that it has not and will not use any replacement agreement
with the State of Oregon to challenge or interfere in any way with our
claims or our annual harvest activities at Willamette Falls.
Unfortunately, the Grande Ronde Tribe has failed to provide similar
assurances. Instead, the Grand Ronde Tribe promotes a false narrative
of historic control of tribal fisheries at Willamette Falls, along with
a claim of primacy or exclusive rights for fishing at Willamette Falls.
To make matters worse, Grand Ronde has aggressively engaged in
adversarial proceedings to exclude our tribes from the Willamette Falls
area. These actions include, but are not limi ted to:
Grand Ronde's production of multiple ``reports,'' compiled by
a non-Indian historian, that falsely discredit our tribes'
history and use of Willamette Falls, and refer to our own
history, as told by anthropologists on our Cultural Resources
Program staff, as ``intellectually dishonest'';
Grand Ronde's repeated attempts to exclude other tribes from
the historical narrative and implementation of a potential
National Heritage Area at Willamette Falls;
Grand Ronde's refusal to allow the Willamette Falls Legacy
Project to proceed if other tribes with rights and interests at
the Falls are involved. (The Legacy Project is a state-county-
municipal project that would redevelop former industrial areas
around the Falls into a riverwalk and opportunities to
reconnect people to the magnificence of the Falls, largely
funded by state and private contributions.)
These exclusionary actions give us significant concern for how
Grand Ronde might use new congressional authority as further
justification to exclude CTUIR or other treaty tribes from accessing
Willamette Falls, as well as other ``usual and accustomed'' areas
protected by our treaties. As mentioned above, the CTUIR is a Treaty
Tribe with explicitly reserved fishing, hunting and gathering rights in
our Treaty of 1855. 12 Stat. 945, Art. I. The Grand Ronde is a restored
tribe, and as such, do not possess treaty rights. Further, the treaties
the Grand Ronde does claim, even if they were in effect, did not
reserve off-reservation rights. (Other tribes also claim the same
treaties.) While this legislation is no doubt well-intended, we are
regrettably unable to provide our support to S. 3126, and actively
oppose S. 3126, until such time as Grand Ronde meets directly with
CTUIR and provides adequate assurance of protections for our treaty
rights at Willamette Falls and its surrounding area.
Please contact us if you have any questions or if we can provide
any further information.
______
Prepared Statement of the Confederated Tribes and Bands of the Yakama
Nation
Chairman Schatz, Vice Chairwoman Murkowski, and Honorable Members
of the Senate Committee on Indian Affairs, thank you for considering
our views on the referenced bills.
We have the greatest respect for the Senators and House Members who
have introduced these, and the House companion bills, but we strongly
oppose their enactment unless they are amended to be consistent with
both history and clear black letter law.
While we are concerned about precedents that could be established
through the enactment of S. 3123, affecting the Confederated Tribes of
Siletz Indians, and request clarifying provisions be added to it, we
wish to focus this statement on S. 3126, legislation amending the Grand
Ronde Reservation Act of 1988.
Through an unrelenting public relations initiative, the
Confederated Tribes of Grand Ronde (CTGR) have perpetuated an amazing
degree of historical revisionism. Simply put, their claims of pre-
existing treaty related hunting and fishing rights never existed and no
amount of wishful thinking or rewriting of more recent history can make
it so.
Some key facts must be in evidence here:
1) The CTGR have never been adjudged to be the successors in
interest to any ratified treaty.
2) The treaties they claim to be successors to contained no
off-reservation hunting or fishing rights.
How then can the Congress now act, or authorize the State of Oregon
to act, to restore rights if those rights never existed? The Congress
should not ignore over a century of federal law determining how Indian
fishing rights affirmed by treaties have been established. Doing so has
the potential for serious damage to treaty-reserved rights we retain
and to the treaty-reserved rights retained by a number of tribes
throughout various regions of the country, not the least being the
Pacific Northwest.
The Treaties signed by the Yakama Nation, the Confederated Tribes
of Warm Springs, the Confederated Tribes of the Umatilla Indian
Reservation, and the Nez Perce Tribe--as well as by tribes in the Puget
Sound, the Confederated Salish and Kootenai of Montana and elsewhere--
contained provisions establishing, or more precisely affirming,
explicit reserved hunting, fishing and gathering rights. Our Treaty and
others also confirmed ``the right of taking fish at all usual and
accustomed places in common with the citizens of the Territory.'' The
same is not true for the CTGR.
For the past century, the Yakama Nation has been at the forefront
defending our rights to fish off reservation at usual and accustomed
places, in the Columbia River Basin. Federal and state courts have
repeatedly ruled that we, as a treaty fishing tribe, have rights to
fish off reservation in a manner regulated by our tribal government. In
the first case--the famous Winans decision of 1905 (198 US 371)--the US
Supreme Court examined our Treaty of 1855 and established the treaty
fishing reserved rights doctrine.
In 1919, in the case of Seufert Brothers Co. v. United States, 249
U.S. 194, the US Supreme Court ruled that the Yakama Treaty allowed
tribal members to fish on the Oregon side of the Columbia and beyond
the area of lands ceded in our Treaty.
In 1942, in the case of Tulee v. Washington, 315 U.S. 681, the
Supreme Court held that Yakama Tribal member Sampson Tulee did not need
a state fishing license due to the provisions in our Treaty of 1855.
In 1967, in State v James, 72 Wn.2d 746, 435 P.2d 521, the
Washington State Supreme Court affirmed a ruling of the Superior Court
for Skamania County that Yakama tribal members have the right to fish
below Bonneville Dam. That right was further affirmed in a MOA between
the Washington State Department of Fish and Wildlife and the Yakama
Nation in 2007.
In 1968, fourteen Yakama tribal members filed suit in a case known
as Sohappy v. Smith, 302 F. Supp. 899 which challenged Oregon's
attempts to regulate off-reservation fishing against members of the
Yakama Nation. That case was joined by the Umatilla, Warm Springs, Nez
Perce and the Yakama tribes and eventually combined with the
significant and precedential US. v. Oregon decision (302 F. Supp. 899),
which affirmed that the governments of the Treaty Tribes, and not the
states or Washington or Oregon, had the authority to regulate Indian
fishermen fishing pursuant to the respective treaties of those tribes.
In 1980, Congress passed the Northwest Power Act which included
over 20 amendments drafted and lobbied for by the Yakama Nation
mandating that power production and fisheries be managed as coequal
interests and directing BPA to protect salmon through the establishment
of a new Fish and Wildlife Program.
There are many other Yakama initiated lawsuits which we won't
discuss in detail, including annual suits in the early 1980s against
the Secretary of Commerce requiring the Pacific Ocean commercial fleet
to be managed in such a fashion to ensure reasonable quantities of fish
returned to the Columbia River.
The basis of Vaka ma Nation's legal fights has always been the
rights reserved by the Vaka ma Treaty, which have never been
extinguished and hold true today just as they did when our Treaty was
signed in 1855. The CTGR does not share this history. Any treaties they
claim were extinguished, as was their status as tribe when they were
terminated in 1954. Despite the restoration of the CTGR's status as a
tribe in the 1980s, no court has ever ruled that the CTGR are the
successors in interest to any ratified treaty and there are various
tribes in western Oregon, including the Siletz, Coos and Lower Umpqua
Tribes of Oregon who claim to be successors in interest to some of the
same treaties claimed by the CTGR. As importantly, the treaties claimed
by the CTGR simply do not contain any language reserving off-
reservation rights to hunt or fish and instead focus significantly on
farming. For instance, Articles 2, 3 and 4 of the Willamette Valley
Treaty reference funds for stock, agricultural implements, seeds,
fencing, the employment of a representative for farming operations and
a survey of lands that can be established as farming lots; the Treaty
with the Umpqua and Kalapuya references opening farms, fencing,
breaking land, providing stock and seeds and agricultural instructors.
These treaties claimed by the CTGR make no mention of fishing, not to
mention off-reservation fishing in usual and accustomed areas.
So, the question is what exactly does CTGR need to renegotiate with
Oregon? The State already allows the CTGR to hunt and fish both on and
off-reservation as part of the State harvest share. The members of the
Indian Affairs Committee should closely examine the testimony submitted
by the Umatilla Tribe of Oregon on this legislation. The Umatilla
chronicle the aggressive tactics of the CTGR in their attempts to
exclude the Yakama Nation, the Umatilla, and Warm Springs Tribes from
a) Willamette Falls in general, b) from the future National Heritage
Area at the Falls, and c) from the Willamette Falls Legacy Project,
despite there being ample evidence of those tribes historical fishing
of lamprey and other fish at Willamette Falls consistent with the
provisions of their respective treaties. The CTGR have, remarkably,
suggested that none of the Columbia River Tribes have authority to fish
in the lower Columbia as the entirety of it is in within the claimed
ceded lands of the CTGR, despite more than a century of litigation and
precedential decisions holding otherwise. Sadly, all of this is
completely consistent with the CTGR's tactics when they spent millions
of dollars in public relations campaigns to try and deny casinos and
the opportunities for job creation to the Warm Springs Tribes of Oregon
and Cowlitz Tribe of Washington State, as they are now doing again
relative to the proposed Siletz casino in North Salem. The CTGR argued
in favor of the Carcieri decision as a means of opposing the Cowlitz
casino. As this committee knows, the Carcieri decision was so repugnant
to Indian law and to tribes in general that the Congress rejected and
reversed it.
Senator Merkley's press release announcing the introduction of this
legislation includes the following language, ``For more than 35 years,
the Grand Ronde and the Siletz tribes of American Indians have been
bound by legal agreements that strip them of the right to manage their
own hunting and fishing seasons on tribal land (emphasis added). His
press release also includes the following quote referenced to CTGR
Chairwoman Cheryle Kennedy, ``Kennedy said she is hoping her tribes
will be able to renegotiate their agreement with the state of Oregon so
the tribal government can manage its own hunting and fishing seasons on
about 12,000 acres that the tribe now owns (emphasis added). Chairman
Schatz, Vice Chairwoman Murkowski, and Committee Members, if that is in
fact what the Oregon Senators and the CTGR want, we have no problem
with it to the extent contemplated actions are limited to existing
reservation lands. But please read the language of S. 3126 and tell us
where you see anything that would limit the authorized future agreement
with Oregon to off-reservation tribal land or any private land that the
CTGR now own? Subsection 2(b)(l) authorizes Oregon and the CTGR to
enter into a new agreement ``relating to the hunting, fishing, trapping
and animal gathering rights of the Confederated Tribes of the Grand
Ronde Community.'' Subsection 2(b)(2) authorizes still further
amendments to the initial agreement in 2(b)(l) whenever it might be
mutually agreed to by Oregon and the CTGR. There is no reference to
those agreements being limited to existing reservation land. Three
years ago, the CTGR purchased the former Blue Heron Paper Mill in
Willamette Falls, 75 miles east of the Grand Ronde Reservation. CTGR
could well petition to have it placed in trust, and it would then be
entirely consistent with how this tribe operates to suggest that they
would push the powers that be in Salem to establish future fishing
rights and even managerial authority over this land and portions of the
Willamette River adjacent to it. Again, please read the Umatilla
Tribe's testimony and the summary of the actions the CTGR have taken at
Willamette Falls on page two above. These aggressive actions and
attempts at excluding the Umatilla, Warm Spring and Yakama tribes from
Willamette Falls are being undertaken now. Imagine the degree these
efforts will expand if this bill passes, and you can be assured those
efforts will be further buttressed by continued large scale campaign
contributions by the CTGR in Salem.
If the Indian Affairs Committee sees justification in this
legislation, we make three requests for amendments to the bill. First,
it should stipulate that the 1986 Consent Decree to ``Permanently
Define [Grand Ronde] Tribal Hunting, Fishing, and Animal Gathering
Rights'' can be amended only relative to their existing Grand Ronde
reservation lands in Yamhill and Polk Counties. Second, that no future
agreement could allow the extension of commercial fishing or co-
management of Columbia River fishing. And third, ensure there can be no
limit on the exercise of existing treaty-reserved fishing rights by
other federally recognized tribes in either the Columbia River or at
Willamette Falls. If the CTGR do not agree to these changes, it should
become obvious that they have misled folks and have intentions that are
well beyond what they have claimed. We have read the savings clause in
Section 2(d) and feel it needs to be extended further as suggested
above.
Finally, we urge the Committee to carefully examine the Judicial
Review Subsection 2(c) of S. 3126. This provision seems to be giving
congressional authority to CTGR to challenge the existing consent
decree, which under federal case law in the 9th Circuit is considered a
final judgment for purposes of res judicata and collateral estoppel.
This bill is proposing the extraordinary step of allowing any party to
the consent decree to be able to challenge the merits of its
substantive provisions in federal court, with no issue or claim
preclusion to prevent any future litigation or new court rulings on
CTGR rights. We think members of the federal judiciary and attorneys
everywhere would find this to be problematic.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Kathryn Isom-Clause
Question 1. This Committee has heard that BIA's realty systems
contribute to the lag in mortgage approvals for residences and
businesses on Tribal lands. Please describe in detail the source of the
delay and any internal reforms BIA has developed/is developing to
address it.
Answer. Several factors could cause delays in processing mortgage
applications, as each application is unique. Delay can stem from
incomplete applications or faulty paperwork included in the incoming
application to the inability to gain consent from co-owners. For second
mortgage applications, the delay often stems from the lack of
satisfaction and release documents for former mortgages. However, the
Bureau of Indian Affairs (BIA) can provide information to the applicant
to facilitate timely receipt of needed documentation.
In cases where lenders provide BIA loans without approved
mortgages, BIA Regional Offices need to perfect the mortgage to be
approved. These cases still need to go through the review process and,
if they legally cannot be approved, the cases may need to be marked as
Incomplete and returned to the lender for mitigation. To address these
delays, the BIA is working to ensure that lenders are fully aware of
all BIA requirements. We recognize that we must continue to ramp up our
education efforts to ensure lenders are comfortable working in Indian
country. Lenders and Tribes have been unclear as to where the approval
authority for leasehold mortgages is under the Helping Expedite and
Advance Responsible Tribal Home Ownership Act of 2012 (HEARTH Act)
lease. Under an approved Tribal HEARTH Act ordinance, which includes
provisions for leasehold mortgages, the Tribe has the authority to
approve leasehold mortgages. Thus, eliminating the need for Secretarial
approval. Tribal approval can significantly decrease the time it takes
to process a leasehold mortgage. To address these misunderstandings,
BIA is working to educate HEARTH Act Tribes and lenders on the lease
and leasehold mortgage approval process.
The BIA is taking steps to expedite the processing of mortgage
applications and issued policies and provided training to agency staff
and Tribal contract or compact employees regarding BIA mortgage
approval requirements and timelines. The BIA plans to conduct
additional procedural and system trainings to ensure timeliness.
Furthermore, the BIA is looking to implement a new mortgage system
within the next six months that will aid in a more convenient
application process, which we anticipate will lead to more timely
approvals. The system will include enhanced quality control,
monitoring, and reporting for BIA.
Question 2. Would the addition of a realty ombudsman help expedite
processing Tribal mortgage applications? What, if any, authority would
the ombudsman have to ensure the Bureau is responsive or in compliance
with the deadlines reflected in S. 3381?
Answer. A realty ombudsman could help expedite the processing of
Tribal mortgage applications. Specifically, a realty ombudsman could
help Tribal contracted and compacted programs and lenders compile
documents needed for complete mortgage applications.
As currently drafted, S. 3381 creates a realty ombudsman who has a
primary responsibility of ensuring deadlines related to the mortgage
application process are met. That position, along with the already
effective Indian Affairs Mortgage Handbook, 52 IAM 4-H, could assist
the Bureau of Indian Affairs in the timely processing of mortgage
applications.
______
Response to Written Questions Submitted by Hon. Ben Ray Lujan to
Kathryn Isom-Clause
Question 1. Ms. Isom-Clause, what is the average time the Bureau
and the Division of Land Titles and Records take to finalize Title
Status Reports and loan packages? What is the average time that each
Bureau of Indian Affairs Regional Office takes to finalize Title Status
Report and loan packages?
Answer. Certified Title Status Reports (CTSRs) are normally
completed within two business days of the request being submitted into
the Trust Asset and Accounting Management System (TAAMS) TSR Request
module. The BIA's Land Titles and Records Office (LTRO) does not have a
role with incoming mortgage applications. However, once a finalized
mortgage is scanned into TAAMS, LTRO will encode and record (apply to
title) the document. An Agency must request the final CTSR through the
TSR Request module and L TRO will certify that within two business days
and send it to the Agency and/or lender.
Pursuant to Title 25 of the Code of Federal Regulations (CFR), Part
162 and the Indian Affairs Manual (1AM) at 52 1AM 4, there are
regulatory timeframes for BIA approval of mortgages. The average time
for BIA to approve a leasehold mortgage is 37 days and a land mortgage
is 106 days.
Question 2. Ms. Isom-Clause, what barriers currently exist to more
expedient processing and certification of Title Status Reports and
mortgages?
Answer. Barriers to expedient processing of CTSRs and mortgages
originate from both internal processes and external parties.
BIA Region and Agency offices function as the office of record for
mortgages. While the number varies from year to year, on average they
process approximately 500 mortgages each year. Agency offices must scan
the mortgage documents into TAAMS and submit the request(s) for a CTSR
to trigger review and recordation. In the past two fiscal years, LTRO
completed over 1,000 TSRs each year (1,225 in FY2l, and 1,096 in FY22.
In FY22, completion date averages range from 5.3-7.6 days depending on
ifwe use the create or assigned date. This does not consider the Agency
Realty Office notifying or sending the CTSR to the lender, only the
certification timeframe as reported through the module and a Qlik
query. Understaffing due to difficulties in filling relevant positions
contributes to delays.
External barriers are also numerous. One of the larger barriers is
lender understanding of the process and required documents. The lender/
applicant is responsible for assembling required documents to support
the Bureau's approval of a mortgage. Lenders enter into mortgages with
landowners that are not yet approved or recorded by the BIA. Some
lenders expect a final CTSR for a transaction that had not yet been
requested nor approved.
Coordination of information is another barrier to more expedient
processing. For example, lenders will send periodic and duplicative
status requests for two to three hundred mortgages at a time. It is a
time-consuming exercise for the BIA to repeatedly provide and validate
lenders' data.
In many instances, the BIA has provided TSRs back to the lender and
the lender has not provided this information to entities such as the
United States Department of Housing and Urban Development (HUD). This
requires the BIA to duplicate case review and provide the dates the TSR
was provided to the lender. Lenders also delay the process by
requesting certain information to be on TSR's as there is no standard
TSR format.
The BIA is committed to supporting Tribes through lender education
efforts, and is striving to increase these efforts to ensure lenders
are aware of the process, timeline, and information required.
Question 3. Ms. Isom-Clause, what actions has the Bureau taken to
expedite Title Status Reports and processing of mortgage-related
documents? What is the status of these actions?
Answer. The Bureau has developed the following guidance and tools
to enhance mortgage application processing:
In May 2018, the BIA issued the TAAMS Title Status Report
Reformat Enhancement and Encoding Guidance.
On May 23, 2018, the BIA implemented and provided guidance
on the TAAMS TSR Module.
On June 14, 2018, the BIA developed the Mortgage Tracker.
--This tool tracks mortgage packages from receipt to the
final CTSR.
On October 17, 2018, the BIA issued 52IAM 4, Processing
Mortgages of Trust Properties.
--This establishes the BIA' s policy, responsibilities, and
procedures for the management and processing of leasehold and
land mortgages of trust property.
On July 15, 2019, the BIA issued the Indian Affairs Mortgage
Handbook.
--This handbook provides instructions to the BIA and guidance
for other agencies and lenders.
--It also includes a process checklist, form and letter
templates, and timeframes for the review and approval of
mortgages, including the generation of TRSs.
On October 4, 2019, the Director, BIA issued a memorandum
entitled Mortgages Top Priority which established the
processing of mortgages as a top priority.
On August 25, 2020, the BIA provided training to regional
and agency staff on the Mortgage Handbook, with an emphasis on
timeliness with regard to TSRs and processing mortgage
applications within regulatory deadlines.
In October 2020, the Lender Loan Portal went live.
--The Lender Loan Portal is to be utilized by the U.S.
Department of Housing and Urban Development (HUD) and lenders
to inquire on the status of a mortgage.
Question 4. Ms. Isom-Clause, currently the Bureau of Indian Affairs
does not initiate a National Environmental Policy Act (NEPA) review
until after the Title Status Report is complete. To expedite loan
packages, why does the Bureau not initiate the processing of both these
processes at the same time?
Answer. With regard to NEPA, the approval of a mortgage by the BIA
is normally categorically excluded (CatEx) from the preparation of an
environmental assessment or environmental impact statement. The CatEx
is documented in a checklist prepared by BIA nonrealty staff shortly
after receipt of a mortgage for approval and does not add to the
overall time for approval.
The purpose of the initial TSR is to demonstrate to the lender that
the potential mortgagee has a leasehold interest recorded on Indian
title. This TSR issuance is an administrative action and not a federal
decision that triggers a NEPA review.
If an applicant is using the Section 184 Indian Home Loan Guarantee
program, the Office of Loan Guarantee works to educate program
participants that the BIA is not responsible for conducting or
completing HUD environmental reviews required by the program. HUD
environmental reviews are completed by Tribes pursuant to 24 CFR Part
58. In cases where the Tribe is unable to or declines to perform the
environmental review, the Tribe may request that HUD perform an
environmental review pursuant to 24 CFR Part 50.
Question 5. Ms. Isom-Clause, how often does the Bureau meet the
deadlines reflected in the Bureau's existing handbooks and policy? How
often do Bureau Regional Offices meet these deadlines? Please specify
which regional offices meet these deadlines and the frequency with
which they do so over the course of recent years.
Answer. Below is a snapshot of the percent of mortgages approved
within the identified timeframes in fiscal years (FY) 2020, 2021, and
2022. This data is retrieved from data encoded into the Mortgage
Tracking System. This data consists of dates and timelines from a
coordinated effort between applicants, lenders, and BIA throughout the
life of a mortgage application. We recognize that this data shows a
need for concerted effort to improve processing times to approve
mortgages within identified timelines. We are committed to making
internal improvements and external education efforts to ensure that
these timeframes are met.
Percent of mortgages approved within the identified timeframes
------------------------------------------------------------------------
FY 2020 FY 2021 FY 2022
------------------------------------------------------------------------
Land Mortgage 71% 75% 75%
Leasehold Mortgage 55% 46% 56%
------------------------------------------------------------------------
Below is a breakdown of the BIA Regional Offices with percent of
mortgages approved within the identified timeframes in FY2020-FY2022.
This data is retrieved from data encoded into the Mortgage Tracker
System. This data consists of dates and timelines from a coordinated
effort between applicants, lenders, and BIA throughout the life of a
mortgage application. Not every BIA Region is identified in a fiscal
year if no mortgage packages were completed. Please note that the
number of mortgages received by each Region varies widely. We are using
increased data analysis on mortgage processing to help to focus our
efforts to improve processing times.
Percent of mortgages approved within the identified timeframes
------------------------------------------------------------------------
Region FY 2020 FY 2021 FY 2022
------------------------------------------------------------------------
A--Great Plains 100% 98% 85%
B--Southern Plains N/A N/A N/A
C--Rockv Mountain 33% 42% 14%
E--Alaska N/A N/A N/A
F--Midwest 81% 74% 83%
G--Eastern Oklahoma N/A N/A N/A
H--Western 27% 17% 0%
J--Pacific 88% 60% 51%
M--Southwest 100% 100% 75%
N-Navaio 70% 50% 100%
P--Northwest 70% 63% 76%
S--Eastern 25% 100% 20%
------------------------------------------------------------------------
Question 6. Ms. Isom-Clause, how would implementing statutory
mortgage review and processing timelines change the Bureau's internal
practices?
Answer. Currently, mortgages involving property on trust lands must
be reviewed and approved by the BIA in order for the mortgage to be
finalized. This pertains to residential, commercial, and right-of-way
mortgages, among others. The 2019 Indian Affairs Mortgage Handbook
established timelines for BIA offices to process mortgage applications.
However, the timelines are not always met. Placing these timelines into
statute would strengthen the authority for improving the timeliness of
mortgage application processing and ensure applicants are provided
homeownership opportunities on trust land.
Question 7. Ms. Isom-Clause, how would creating a Realty Ombudsman
position in the Bureau change the Bureau's internal practices and help
the Bureau meet the timeframes outlined in the Bureau's 2019 Mortgage
Handbook?
Answer. A realty ombudsman could help expedite the processing of
Tribal mortgage applications. Specifically, a realty ombudsman could
help Tribal contracted and compacted programs and lenders compile
documents needed for complete mortgage applications. A realty ombudsman
could also serve as a liaison and facilitate communications between the
BIA, Tribes, applicants, lenders, and other Federal agencies. An
ombudsman could work to improve tracking, reporting and lender
education with federal lending partners. All of these functions would
help ensure the timeframes in the 2019 Indian Affairs Mortgage Handbook
are met.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Hon. Delores Pigsley
Question 1. Please provide examples of how being unable to modify
the current consent decree creates additional barriers for your Tribe.
Answer. We are a Tribe of over 5000 people but are extremely
limited in the number of fish, deer and elk we may harvest under the
existing Consent Decree with the State of Oregon. This precludes us
from being able to provide subsistence foods to our elders and other
tribal members in need.
Question 2. How would the proposed amendments in S. 3123 help
modernize and improve your access to hunting and fishing opportunities,
as well as management?
Answer. The changes as proposed in S. 3123 would allow the Siletz
Tribe to pursue a new agreement with the State of Oregon for additional
harvest of traditional foods for ceremonial and subsistence purposes.
It would modernize our access to hunting and fishing opportunities to
the extent the geographic scope would be broadened to better reflect
the Tribe's ancestral areas in Oregon. In so doing, we look forward to
having more input with the State of Oregon in wildlife management to
improve resources for all Oregonians.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Hon. Cheryle Kennedy
Question 1. Please provide examples of how being unable to modify
the current consent decree creates additional barriers for your Tribe.
Answer. Grand Ronde's Consent Decree was signed in 1987 and
authorized hunting and fishing rights within the State of Oregon's
Trask Wildlife Unit. As such, the current agreement does not include
provisions for hunting and fishing regulations that have been adopted
by the State of Oregon after 1987.
This means that Tribal hunting and fishing rights do not meet the
same requirements as State hunting and fishing regulations, often
putting Tribal members at a disadvantage when compared to the
opportunities granted to participants purchasing State of Oregon
hunting and fishing licenses. Specific examples include:
Fishing
The Consent Decree only allows fishing from the high water mark of
a waterway, but a State fishing license allows off-shore fishing in
bays and the ocean. Modifications would reconcile this inequity.
At the time of the agreement, salmon and steelhead harvest cards
were not required by the State and Tribal members could harvest these
fish as needed. A harvest card is now required, and Tribal members must
purchase these documents from the State; this is a monetary cost for
something that used to be free.
Shellfish Harvesting
The State of Oregon regulates shellfish harvesting through a
shellfish license and the Consent Decree does not include any
authorization to harvest shellfish. Therefore, Tribal fishing licenses
did not include the opportunity to harvest shellfish, including crab.
The Tribe spent years negotiating a separate agreement to authorize
Tribal membership to harvest shellfish which took 4 years of staff to
staff coordination; while this was successful, it was not efficient.
Hunting
The Consent Decree limits the number of tags the Tribe may receive
from the State of Oregon for hunting big game such as deer, elk, and
bear. There are two inequities from these restrictions developed in
1987:
First, they do not account for the increase in Tribal
membership over time. The number of tags the agreement
authorizes was set for a membership of 1,761 people; today, the
current enrollment is 5,616.
Second, the agreement is missing additional game that the
Tribe and its membership would like to be recognized, including
game birds, furbearers, squirrels, etc. Similarly to the
shellfish agreement, Tribal staff developed a Tribal Wildlife
Management Plan and spent 8 years negotiating with Oregon
Department of Fish and Wildlife (ODFW) biologists on it prior
to the ODFW Commission authorizing it under an Oregon
Administrative Rule in September 2014; while successful, again
it was not efficient and not a rational way of doing business.
The Consent Decree limits elk tags distributed to the Tribe (45 for
first season and 45 for second season) while the State of Oregon does
not limit the number of over the counter purchases for these elk tags
(hunters must choose one season, but no limit to the number of tags in
those season).
The Consent Decree limits the Tribe to ``harvest'' 350 deer, 45
combination tags for one deer or one elk, and 5 bear tags.
Under ODFW, combination tags do not exist and have now
defaulted elk tags.
Harvest success rate is 10 percent so the Tribe should
actually receive more tags to get to the harvest rage of 350,
45, and 5.
Consent Decree is only recognized in the Trask Unit; it does not
allow for the Tribe to issue tags for Tribally owned lands outside of
the Trask.
Question 2. How would the proposed amendments in S. 3126 help
modernize and improve your access to hunting and fishing opportunities,
as well as management?
Answer. The proposed amendments in the bill would help modernize
and improve hunting and fishing opportunities by providing an updated
agreement that holds a mechanism to keep up with today's issues such as
State of Oregon modifications to hunting and fishing regulations (such
as shellfish, trout stamps, salmon and steelhead harvest cards, etc.)
The Consent Decree is a static document and literally says it
cannot be changed; this is not a way of doing business in natural
resources management that depends wholly on adaptive management as
resources change. Modifications would create a more flexible and
dynamic document (not static), which will allow the Tribe to work with
the State of Oregon and ODFW in a co-management environment to protect
the resources; target, modify, respond to issues;
It represents a time period of being stuck in 1987; modifications
would allow a more current agreement that reflects current conditions;
better managed and intentions; there are a ton of regulations
implemented since 1987 that don't fit this agreement.
______
Response to Written Questions Submitted by Hon. Ben Ray Lujan to
Sharon Vogel
You state in your testimony that often Tribal home buyers feel as
though their mortgage packages ``fall into a black hole'' at the Bureau
of Indian Affairs. Because of this, you emphasize the importance of the
Tribal Trust Land Homeownership Act of 2021 establishing a Realty
Ombudsman with the authority to issue automatic waivers and assume
approval if timelines for mortgage packages are not met.
Question 1. Ms. Vogel, how would providing this authority to a
Realty Ombudsman change outcomes for lenders and Native Americans
pursuing homeownership on Tribal lands?
Answer. Over the course of the approximately 25-year history of
mortgage lending on tribal trust and restricted lands, a major
challenge has been accountability and transparency by the BIA Realty
Services and Land Titles and Records Offices (LTRO) in the processing
of leases, title information, and mortgage packages. Prior to August
2019 with the introduction of the BIA Mortgage Handbook, there was
little standardization among the 100+ BIA Agency Offices and 12
Regional Offices. Lenders and prospective homeowners have been at the
mercy of this system and virtually no one outside of the BIA has ever
seen a report on the performance of processing mortgage-related
documents by either Realty Services or LTRO.
A Realty Ombudsman could be an escalation resource to:
Provide a mechanism for lenders and borrowers to resolve
delays resulting from documents stuck in the system at the
Agency or Regional Offices, or LTRO Offices.
Interface with management regarding policy and procedure
issues.
Ensure systems like the Mortgage Package Lookup Portal are
performing as intended.
Monitor performance of document flow and identify trouble
spots that are inconsistent with the timeframes identified in
this legislation.
You also suggest that the creation of an advisory group to work
with the Bureau of Indian Affairs would help identify unnecessary
leasing regulations.
Question 2. Ms. Vogel, whose perspectives are important to hear on
an advisory group related to leasing?
Answer. It is important to hear the perspectives of all the
stakeholders involved with the homebuying process on tribal land
including: BIA officials, tribes and tribally designated housing
entities (TDHEs) who have prioritized homeownership in their
communities, tribes who have adopted their own residential leasing
regulations pursuant to the HEARTH Act, lenders, secondary market
investors, Native community development financial institutions, and
title companies and closing agents.
Question 3. Ms. Vogel, what existing regulations currently hinder
Tribal homeownership? Please specify which changes would best
streamline the process for Native American homebuyers and Tribal
lenders.
Answer. The U.S. Department of Housing and Urban Development has
been in the process of revising its Section 184 Home Loan Guaranty
program for the past five years. HUD should publish its proposed
regulations as soon as possible.
Question 4. Ms. Vogel, what additional statutory changes would help
increase Native American homeownership on Tribal lands?
Answer. In addition to streamlining the BIA processes as proposed
in S. 3381, the Coalition proposes the following statutory changes:
1. Congress should enact S. 2092, the Native American Rural
Homeownership Improvement Act of 2021, to improve access to the
USDA 502 single family direct home loan program on tribal land.
The Native American Rural Homeownership Improvement Act of
2021 (S. 2092, H.R. 6331) would make the U.S. Department of
Agriculture (USDA) 502 home loan relending pilot permanent by
authorizing the USDA Secretary to use $50 million of existing
502 single family direct home loan appropriations for a
national relending program so that Native community development
financial institutions (CDFIs) across the country can increase
access to affordable home loans in rural Native communities.
USDA Rural Development has limited staff resources to provide
Single Family Housing direct loans on tribal land. Native
community development financial institutions have experience
operating on tribal land. In addition, they provide extensive
financial and homebuyer education to their clients. The
proposed demonstration relending program would make Native
CDFIs eligible borrowers under the 502 direct loan program and
enable them to relend for the construction, acquisition, and
rehabilitation of affordable housing to eligible families.
2. Reform the VA Department's Native American Direct Loan
Program to make it more accessible to Native veterans living on
trust land.
The Native American Direct Loan (NADL) program is a veteran
home loan program authorized by 38 USC 3761 to provide
direct loans to Native American veterans living on trust lands.
Despite the availability of these funds earmarked for Native
veterans, loans are not being made to qualified borrowers. The
U.S. Department of Veterans Affairs (VA Department) lacks
adequate staff resources to conduct outreach and provide the
required level of technical assistance to effectively deploy
the NADL program to qualified Native American veterans on trust
land.
The Government Accounting Office (GAO) is currently conducting
a review of the NADL program. Congress should act swiftly to
consider the GAO's recommendations and enact legislative
reforms to improve the deployment of this NADL program.
3. Provide adequate resources for the implementation of the
HEARTH Act to allow tribes to manage their own trust land
leasing processes. Congress should provide the U.S. Department
of Interior Bureau of Indian Affairs adequate staffing and
training resources to support training and capacity building
for tribes to implement the Helping Expedite and Advance
Responsible Tribal Home Ownership Act of 2012 (the HEARTH Act).
While this law appeared to provide a promising mechanism for
tribes to streamline the mortgage process by providing the
authority for tribes to manage their own leasing processes, the
full benefit of this authority has not yet been realized
because the BIA does not have adequate resources to support the
implementation of the Act.
4. Amend federal statute to explicitly provide authority for
the Department of Justice (DOJ) U.S. Attorney's Office to
adjudicate HUD Section 184 foreclosures in tribal court. The
HUD Section 184 loan guarantee program, codified at 12 U.S.C.
1715z-13a, authorizes loan guarantees for housing
loans for Indian tribes, tribally designated housing entities,
and Indian families. If the borrower defaults on the loan, the
lender may either foreclose on the property or assign the loan
to HUD. If the lender assigns the loan to HUD, HUD works with
the DOJ Office of U.S. Attorneys to pursue foreclosures in
state or federal court.
According to HUD counsel, 28 U.S.C. 1345 does not
authorize the filing of foreclosure actions by the U.S.
Attorney on HUD's behalf in tribal courts, unless permitted by
some other act of Congress. The statute authorizing the U.S.
Attorney to foreclose on property in state court, 28 U.S.C.
2410, does not provide similar authority to conduct
such foreclosures in tribal court.
Section 248 of the National Housing Act (12 U.S.C.
1715z-13) authorized the HUD Section 248 Mortgage
Insurance on Indian Land Program. According to 12 U.S.C.
1715z-13(g)(5), HUD's Section 248 foreclosure
proceedings ``may take place in a tribal court, a court of
competent jurisdiction, or Federal district court.'' This
statutory authority should be extended to the HUD Section 184
loan guarantee program.
5. Streamline and coordinate the requirements of each federal
agency to conduct an environmental assessment pursuant to the
National Environmental Policy Act (NEPA).
Congress should designate HUD as the lead federal agency to
manage a single, unified, and coordinated environmental review
process on trust land pursuant to the requirements of NEPA so
that tribes can use a HUD environmental clearance to satisfy
the requirements of all federal agencies involved. In addition,
Congress should provide the statutory authority for the HUD 184
program to issue a categorical exclusion under NEPA.
Under current law, ever federal action requires an
environmental review (ER) which means that the BIA issuing a
residential lease may trigger an ER requirement and then
approving a mortgage encumbrance may require another ER. In
addition, if multiple federal agencies are involved in the
construction of one home, there could be multiple environmental
reviews requirements from multiple federal agencies.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Sharon Vogel
Question 1. Please explain why the path to homeownership on Tribal
lands takes so long, as compared to non-Tribal lands. Are the reforms
in S. 3381 necessary--if so, how so?
Answer. Homeownership on Tribal lands is complicated. The primary
issue concerns the Laws, Regulations and procedures required by the
Bureau of Indian Affairs to effect a marketable title to assign to a
lender. The process is complicated and hails back to a time when tribes
had little understanding of the components of securing interest in
land. The process implemented by the Bureau of Indian Affairs has on
occasion been updated but the outcomes for Tribes pursuing
homeownership under current rules, are still not working. S.3381 could
help but as I testified in February, we do not see any effective
penalty to the BIA for not meeting deadlines required by the proposed
legislation. Even with an ombudsman, what leverage is included to
provide accountability and what additional options do tribes have
available if established time lines are not met?
The second impediment to lending on Tribal trust lands continues to
be limited secondary markets for loans once they are completed by a
qualified lender. Almost all Trust land loans are ``qualified'' due to
secondary market requirements that most Trust land loans cannot meet.
(Title insurance, appraisal, market data, etc.)This issue is compounded
by the costs of initiating loans on trust land, and the time delays
that reduce the profit margins on most trust land loans.
The third issue impacting length of time required to finalize trust
land loans is the inflexibility of federal programs that offer trust
land mortgages such as the HUD 184 program and the USDA RD 502
Guarantee program. Neither program has been willing to negotiate with
tribes regarding certain lease forms, tribal court issues and program
procedures. Most are not statutory but reside more in each agencies
OGC. A fear of tribal sovereignty issues and an absence of federal/
tribal law seems to cause both agencies to take a more conservative
approach to making their loans available.
Question 2. Are there additional statutory changes Congress should
consider?
Answer. We believe that tribes and lenders would benefit from the
creation of a new government -sponsored entity (GSE).This concept was
discussed in the early 1990's but lost momentum when Congress passed
legislation that allowed Tribes to Develop Community Development
Financial Institutions. (CDFI) While native CDFI's continue to show
great potential, they too need a market for their home loans. Certain
economic development loans initiated on restricted Tribal lands could
also benefit from a Native GSE. UNAHA has also advocated a tribal set-
aside for USDA Rural Development funding. Tribes are not accessing
these programs in large numbers due to the lack of recognition of
Tribal sovereignty by USDA.
Question 3. In your testimony, you recommended the creation on an
advisory committee that would assist the Bureau to identify and remove
antiquated leasing regulations. Are there specific sections you suggest
removing? How would removing these sections assist in processing lease
documents: What impact, if any, would the removal of these sections
have on proposed S. 3881?
Answer. UNAHA believes that an Advisory Committee made up of BIA
Leasing Officials and knowledgeable tribal housing leaders experts and
lenders could address needed changes in current regulations and
procedures. While S.3381 adds urgency and focus to existing processes,
we are proposing a beginning to end review that would allow the Bureau
and tribes to create a document that would lighten the load for both
parties.
An example would be that currently, under the Bureau's PROCEDURAL
HANDBOOK for Leasing and Permitting, Section 2.0 GENERAL AUTHORITIES
AND POLICIES, 2.1 Federal Law, allows leasing pursuant to Section 17 of
the Indian Reorganization Act (IRA) to take place without Secretary
Approval. Are tribes made aware of this option when creating the legal
status of their housing TDHEs?
The Bureau's PROCEDURAL HANDBOOK also limits residential leases to
a term not to exceed twenty-five years and a single renewal, when
elsewhere in the HANDBOOK, it recognizes that NAHASDA (25 U.S.C. 4211)
allows a 50 year lease. (NAHASDA allows 50 year residential leases
without further regulation) Under 2.8 of the Handbook, the Bureau seems
to give tribes more leeway regarding residential leases. It states in
part; ``the BIA will recognize applicable tribal laws regulating
activities on land under agricultural, residential and business
lease''. This appears to be a strong argument tribes to review the
HEARTH Act and its potential.
The Advisory Committee could review each of the relevant statutes
and recommend changes or amendments to simplify the process and
recognize imperfections in current process. In S.3381, the Ombudsman
could be authorized to work with the committee whether the Advisory
Committee is formalized in legislation or is organized separately. It
would be beneficial to make it official so that recommendations have
some opportunity to become regulatory.
We would also recommend that the Senate Committee on Indian Affairs
revisit the HUD 184 program. As written originally, many of the issues
we are facing today could have been addressed. HUD unilaterally has
made changes over the past 25 years, many benefiting non restricted
land borrowing by tribes. We would encourage the Senate Committee to
hold an oversight hearing on this eight billion dollar federal program
that has had new regulations in development (with no real tribal input)
for nearly four years! It works fine on fee land, but it was created
for Tribal Trust Land!!
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Hon. Reid Milanovich
Question 1. How will clarifying the status of the land transferred
from BLM to the Tribe assist the Tribe in managing its natural and
cultural resources on the reservation?
Answer. The BLM, while well meaning, does not have the staff or
resources that the Tribe dedicates to monitoring trails and resources
under its authority, especially when land ownership is mixed in a
square mile checkerboard manner. Holding the exchanged lands in trust
reaffirms the Tribe's authority and removes any confusion about which
sovereign is responsible.
Question 2. You stated in your testimony that the Tribe intends to
continue to allow public access on former BLM Lands that are currently
within the boundaries of its reservation. Does the Tribe retain a
similar level of management influence over Tribal lands that were
transferred to the BLM as part of the land exchange that helped to
create the San Jacinto National Monument?
Answer. No. The Tribe relinquishes its responsibility and influence
over lands that are transferred to and managed by the BLM. The Tribe
will continue to be a co-manager of the Monument as originally
envisioned.
Question 3. Would greater influence in the development of federal
land management plans, specifically related to the protection of
cultural and sacred places and practices, benefit the Tribe? At what
stage in the decisionmaking process should Tribes be involved?
Answer. Yes. The Tribe, through its Tribal Historic Preservation
Office, and the agency would greatly benefit from early comprehensive
consultation prior to the timing required in the statutes. It will
allow for a collaborative process whereby the Tribe could provide input
on culturally sensitive areas for siting projects on federal lands. It
would result in an efficient planning and implementation process for
the agency and could possibly streamline the compliance process in the
event of an inadvertent discovery during the construction phase of any
ground disturbing project.
As the designated steward of the Tribe's cultural heritage, charged
with protecting, preserving, and managing resources on all tribal lands
within the exterior boundary of the reservation, the Tribal Historic
Preservation Office (THPO) is the appropriate office for managing the
Tribe's cultural resources, sacred sites, and places of cultural or
religious importance. Assigning the property to Trust status provides
protection to cultural and sacred places by placing the lands under
THPO oversight. The THPO complies with the National Historic
Preservation Act (NHPA), American Indian Religious Freedom Act,
Executive Order 13007 on Indian Sacred Sites, Native American Graves
Protection and Repatriation Act (NAGPRA), and the Archaeological
Resource Protection Act (ARPA).
NHPA section P.L. 102-575 allows federally recognized Indian Tribes
to take on formal responsibilities for the preservation of significant
Historic Properties on tribal lands. Specifically, Section 101(d)(2)
allows Tribes to assume any and all of the function of a State Historic
Preservation Officer (SHPO) with respect to tribal land. Additionally,
agencies are required to consult with the THPO in lieu of the SHPO for
undertakings occurring on, or affecting Historic Properties on tribal
lands. The Agua Caliente THPO assumed these responsibilities through
designation as a THPO with the National Park Service in 2005.
[all]