[Senate Hearing 118-416]
[From the U.S. Government Publishing Office]
S. Hrg. 118-416
S. 2385, S. 2796, S. 2868, S. 3022, AND S. 3230
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 8, 2024
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
U.S. GOVERNMENT PUBLISHING OFFICE
56-846PDF WASHINGTON : 2024
COMMITTEE ON INDIAN AFFAIRS
BRIAN SCHATZ, Hawaii, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
MARIA CANTWELL, Washington JOHN HOEVEN, North Dakota
JON TESTER, Montana STEVE DAINES, Montana
CATHERINE CORTEZ MASTO, Nevada MARKWAYNE MULLIN, Oklahoma
TINA SMITH, Minnesota MIKE ROUNDS, South Dakota
BEN RAY LUJAN, New Mexico
Jennifer Romero, Majority Staff Director and Chief Counsel
Amber Ebarb, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on February 8, 2024................................. 1
Statement of Senator Bennett..................................... 17
Statement of Senator Cortez Masto................................ 2
Statement of Senator Fischer..................................... 27
Statement of Senator Mullin...................................... 19
Statement of Senator Murkowski................................... 3
Statement of Senator Schatz...................................... 1
Statement of Senator Smith....................................... 3
Witnesses
Egorin, Hon. Melanie Anne, Ph.D., Assistant Secretary for
Legislation, Health and Human Services......................... 4
Prepared statement........................................... 6
Heart, Hon. Manuel, Chairman, Ute Mountain Ute Tribe............. 13
Prepared statement........................................... 15
Isom-Clause, Kathryn, Deputy Assistant Secretary, Indian Affairs,
Department of the Interior..................................... 10
Prepared statement........................................... 11
Kitcheyan, Hon. Victoria, Chairwoman, Winnebago Tribe of Nebraska 28
Prepared statement........................................... 29
Lankford, Hon. Douglas, Chief, Miami Tribe of Oklahoma........... 20
Prepared statement........................................... 21
Larsen, Hon. Robert L., President, Lower Sioux Indian Community.. 31
Prepared statement........................................... 32
Wilson, Angie, Executive Director, Reno Sparks Indian Colony
Tribal Health Center........................................... 33
Prepared statement........................................... 35
Appendix
Letters, submitted for the record by:............................
American Rivers; National Audubon Society; The Nature
Conservancy; Theodore Roosevelt Conservation Partnership;
Trout Unlimited; and Western Resource Advocates............ 48
Clean Water for All Coalition................................ 50
Hon. Joni K. Ernst, U.S. Senator............................. 48
Hon. Charles E. Grassley, U.S. Senator....................... 49
Dr. Buu Nygren, President, Navajo Nation..................... 49
VesselTM............................................. 51
Response to written questions submitted by Hon. Brian Schatz to:
Hon. Melanie Anne Egorin..................................... 53
Hon. Manuel Heart............................................ 55
Thatte, Kabir, Vice President, Policy and External Affairs,
DigDeep, prepared statement.................................... 41
U.S. Department of Agriculture (USDA), prepared statement........ 46
S. 2385, S. 2796, S. 2868, S. 3022, AND S. 3230
----------
THURSDAY, FEBRUARY 8, 2024
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:31 a.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 morning. During today's legislative
hearing, we will consider five bills, S. 2385, Tribal Access to
Clean Water Act of 2023; S. 2796, a Bill to Provide for the
Equitable Settlement of Certain Indian Land Disputes Regarding
Land in Illinois and for Other Purposes; S. 2868, a Bill to
Accept the Request to Revoke the Charter of Incorporation of
the Lower Sioux Indian Community of the State of Minnesota at
the Request of That Community and for Other Purposes; S. 3022,
the IHS Workforce Parity Act of 2023; and S. 3230, the
Winnebago Land Transfer Act of 2023.
S. 2385 was introduced by Senator Bennett and has eight
cosponsors. The bill would expand access to funding provided
through the Infrastructure Bill for clean water across Indian
Country. Specifically, it authorizes the U.S. Department of
Agriculture to make loans and grants for technical assistance,
authorize additional funding for technical assistance to
existing Indian Health Service water facilities programs, and
authorize funding for the Bureau of Reclamation's existing
Native American Technical Assistance Program.
S. 2796 was introduced by Senator Mullin. This bill would
waive any statute of limitation and grant the United States
Court of Federal Claims jurisdiction to decide a land claim of
the Miami Tribe of Oklahoma arising under its 1805 Treaty of
Grouseland with the United States. The bill would also
extinguish any and all other claims the tribe, its members,
descendants or predecessors in interest have to lands in
Illinois, and a clear title to those lands.
S. 2868 was introduced by Senators Smith and Klobuchar.
This bill would revoke, at the request of the Lower Sioux
Indian Community, the tribe's corporate charter under Section
17 of the Indian Reorganization Act.
S. 3022 was introduced by Senator Cortez Masto and Senator
Mullin. This bill would permit the Indian Health Service
scholarship and loan repayment assistance recipients to fulfill
service obligations through half-time clinic practice.
S. 3230 was introduced by Senator Fisher and has three
cosponsors. This bill would transfer approximately 1,585 acres
of land currently administered by the United States Army Corps
of Engineers to the Bureau of Indian Affairs to be held in
trust for the Winnebago Tribe of Nebraska as part of the
tribe's reservation. The bill would prohibit gaming activities
on these lands under the Indian Gaming Regulatory Act.
Before I turn to the Vice Chair for her opening statement,
I would like to extend my welcome and thanks to our witnesses
for joining us today. I look forward to your testimony and our
discussion.
For the audience's and panelists' information, I think
there are seven hearings happening at the exact same time, and
a Republican Caucus meeting, which I am sure is going smoothly.
[Laughter.]
The Chairman. Now I will recognize Senator Cortez Masto to
introduce her witness. Senator Cortez Masto?
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you, Chairman. I am so pleased
to be introducing Angie Wilson. Angie serves as the Tribal
Health Director for the Reno Sparks Indian Colony in Reno,
Nevada. It is the largest tribal health clinic in my State,
having served more than 6,000 American Indians and Alaska
Natives.
Ms. Wilson is an enrolled member of the Pit River Tribe of
Northern California and a descendant of the Klamath Tribe of
Southern Oregon. Ms. Wilson's career has spanned nearly three
years in tribal health administration. Apart from her
directorship, she serves several tribal delegations, including
the National CMS Tribal Technical Advisory Group, the
California Area IHS Tribal Advisory Committee, and the Pit
River Tribal Health Service Board of Directors.
Over her career, Ms. Wilson has directed multi-award
winning tribal health clinics and has received recognition from
the National Indian health Board for her significant work in
advocacy to strengthen quality health care initiatives and
sustainability methodologies for American Indian and Alaska
Native communities.
I welcome Angie to this Committee and the hearing today.
Thank you, Mr. Chair.
The Chairman. Thank you, Senator Cortez Masto.
Senator Smith, are you ready to introduce your witness? I
know you just sat down.
Senator Smith. I think I am ready, Mr. Chair, thank you
very much. It is one of those mornings.
The Chairman. I understand. If you want me to stall for 30
seconds, I will do so.
[Laughter.]
STATEMENT OF HON. TINA SMITH,
U.S. SENATOR FROM MINNESOTA
Senator Smith. Good morning. I want to thank Chair Schatz
and Vice Chair Murkowski for holding this hearing today and
also for including my bill to revoke the corporate charter of
the Lower Sioux Indian Community at the request of the tribe.
I also want to welcome President Larsen, ``Deuce'' Larsen,
of Lower Sioux to the Committee. Deuce has served on the
council for over a decade and is a tremendous leader for the
tribe. I am honored to call Deuce my friend as well as my
colleague. And I am very grateful that he is with us today to
discuss the importance of this bill to the Lower Sioux.
Mr. Chair, you know that the Indian Reorganization Act of
1934 set about a new era of Federal Indian policy, one that
allowed for self-determination and government-to-government
relationships between tribal nations and the Federal
Government. It also created these paternalistic and burdensome
corporate charters under which tribes would theoretically be
able to conduct their business activities.
For Lower Sioux, this corporate charter limits transactions
that they can make to $1,000 without the direct consent of the
Secretary of the Interior. So $1,000, or you have to go to the
Secretary of the Interior. It limits lease terms, corporate
income and prohibits the sale of land held by the corporation.
So the charter is outdated, and Lower Sioux is asking
Congress to revoke it, and that is the purpose for the bill
that we have here.
I am grateful for the opportunity to have a hearing on this
bill, and I welcome Deuce to the Committee, and welcome to all
our panelists here today. It is great to be with you. Thank
you.
The Chairman. Thank you, Senator Smith. We will now
recognize the Vice Chair for her opening statement.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. My apologies
for being late. We are bouncing in between three different
hearings and a caucus meeting this morning. So it is a busy
day.
Thank you, and welcome to our witnesses. I appreciate your
being here and the contribution you will provide to the
Committee. I am going to keep my comments brief, as I know
members will be speaking about their bills.
I am pleased; this is a good range of issues that we have
before the Committee today. Everything from promoting tribal
economic development to hiring and retaining doctors at IHS to
restoring tribal lands and settling outstanding tribal land
claims.
We also have legislation aimed at expanding access to water
in Indian Country. I would just like to make a couple of short
comments, because I have raised it so often in this Committee
about the significance, the importance, the responsibility to
deliver clean, affordable water to our Native communities.
IHS estimates that one in ten Native Americans lacks access
to water or indoor plumbing. This is 2024. So to know that that
statistic is still one that so many are living with is really
very troubling.
I come from a place where we have families that have to
haul or barge in their water. In some cases, river water is the
only option. And as clean as we might want to think that is, it
doesn't meet the Federal water quality standards. But it is
truly one of our great public health challenges in rural Alaska
and so many parts of the Country as well.
We have made some progress through the Bipartisan
Infrastructure Law in clearing the backlog of water and
sanitation projects at IHS. Communities that have waited for
decades to get piped water and sewer are finally getting
connected, that is great.
We had a hearing in September on the trust responsibility
of providing full water and sanitation needs for those in our
Native communities. Again, a recognition that the need is great
and there is so much more that remains to be done.
It is not only the construction side of it, but it is also
the operation and the maintenance. So the Federal investment
that is made as we seek to meet our trust obligations is so
important.
We have launched a GAO study to examine the operation and
maintenance issue in greater detail. But I think it is pretty
clear that the Federal Government has to start working with
tribes now to address O&M before costs begin to compound in the
coming years. So there is a lot to be done in that space, and I
think the opportunity we have with leadership that is before
the Committee now to help us address some of these challenges,
raise them to the level of the legislation that is being
considered today and then move to improve outcomes is good.
Thank you for the opportunity, Mr. Chairman.
The Chairman. Thank you very much, Vice Chair Murkowski.
Now we will introduce the remainder of our panel. I will
start with the Honorable Melanie Anne Egorin, the Assistant
Secretary for Legislation, Health and Human Services at Health
and Human Services. Ms. Kathryn Isom-Clause, the Deputy
Assistant Secretary of Indian Affairs at the Department of
Interior.
The Honorable Manuel Heart, the President of the Ute
Mountain Tribe in Colorado, welcome. The Honorable Douglas
Lankford, Chief of the Miami Tribe of Oklahoma, Miami,
Oklahoma. Thank you. The Honorable Victoria Kitcheyan, the
Chairwoman of the Winnebago Tribe of Nebraska, Winnebago. We
appreciate your being here.
I will remind all of our witnesses that we have your full
written testimony. Please keep it within five minutes, so that
we have time for questions.
We will start with Ms. Egorin. Please proceed with your
testimony.
STATEMENT OF HON. MELANIE ANNE EGORIN, Ph.D.,
ASSISTANT SECRETARY FOR LEGISLATION, HEALTH AND HUMAN SERVICES
Ms. Egorin. Good afternoon, Chairman Schatz, Vice Chair
Murkowski, and members of the Committee. Thank you for the
opportunity to provide testimony on two important legislative
proposals, and for your continued support of the Department of
Health and Human Services' efforts to improve health and well-
being for American Indians and Alaska Natives.
Your consideration today of Senator Cortez Masto's Indian
Health Service Workforce Parity Act and Senator Bennett's
Tribal Access to Clean Water Act underscores the commitment to
improving the quality of life in Indian Country.
I am Melanie Anne Egorin, the Assistant Secretary for
Legislation at HHS. My office serves as the primary link
between the Department and Congress, providing technical
assistance on legislation, facilitating informational briefings
related to Department programs, and supporting the
implementation of legislation passed by Congress.
The Department has been pleased to collaborate with
Congress and this Committee to investigate the many challenges
facing Indian Country. HHS remains committed to working with
Congress to improve health for tribal and Native communities,
including finding solutions related to clean water access and
IHS workforce shortages.
The IHS, as a rural health care provider, experiences
difficulty recruiting and retaining health care professionals.
In particular, recruiting physicians and other primary care
clinicians has been especially challenging. There are over
1,800 current vacancies at IHS. Staffing shortages are
particularly prevalent in the behavioral and mental health
fields, which has only exacerbated the substance use crisis and
suicide crisis that tribes across the Country are facing in
their communities.
Workforce challenges and the impacts on care that come from
them are one of the top concerns raised to the Department by
tribes. My staff and I have heard first-hand on our visits to
the Oglala Sioux Tribe on the Pine Ridge Reservation in South
Dakota and the Blackfeet Tribe in Montana. The Blackfeet Tribe
shared that workforce shortages of over 40 percent at their
hospitals and clinics greatly impacts the accessibility and
quality of health care in their rural community.
These experiences have been echoed by other tribes across
the Nation to IHS, particularly during tribal consultation.
The IHS continues to support new strategies to develop
workforce and leverage advanced practice providers and
paraprofessionals to improve the access and quality of health
care in tribal communities, and ultimately the Indian Health
Services needs additional authorities and resources to build
our workforce pathway.
That is why the President's budget has included a number of
proposals that have sought to make IHS more competitive with
other Federal agencies in our hiring process and reduce
systemic barriers to recruitment and retention. The IHS
Workforce Parity Act would allow recipients of IHS scholarships
and loan programs to fulfill their service obligations through
half-time clinical practice. This bill is certainly aligned
with the goals of IHS in many respects.
The President's budget includes a similar proposal that
permits both IHS scholarship and loan repayment recipients to
fulfill service obligations through half-time clinical practice
over an extended period of time. This would increase the
ability of IHS to recruit and retain health care clinicians and
to provide primary care health and specialty services.
This is one of many proposals in the President's budget
that are budget-neutral, small fixes that have major impacts in
the efficacy and quality of IHS. Specifically, IHS also seeks
tax exemption for their health professional scholarship and
loan repayment programs. Exempting this program would allow IHS
to support an additional 190 providers in a given year.
The agency is seeking discretionary use of all Title 38
Personnel flexibilities to help pay higher salaries and offer
more flexible time off to providers, permanent authority to
hire and pay experts and consultants that would combat future
pandemics and emergencies, and unique health care challenges by
providing additional high level resources to IHS unavailable in
the current workforce.
The agency is also seeking legislative authority to conduct
mission-critical emergency hiring beyond 30-day appointments to
fill key positions.
I want to reiterate that the Biden-Harris Administration
agrees that water is a sacred resource and must be protected.
The Administration and HHS have worked hard to begin to address
decades of chronic underinvestment in infrastructure with
tribal and Native communities.
The bipartisan efforts of Congress, including many
champions in this room, have helped to ensure critical funds
for clean drinking water and modern water and sanitation
systems were included in the Infrastructure Investment and Jobs
Act. We are committed to ensure that these historic funds are
implemented successfully, and that the dollars reach Indian
Country as quickly as possible.
That being said, too many tribal families still do not have
access to clean water and reliable wastewater infrastructure.
The Tribal Access to Clean Water Act aims to help expand HHS'
role in providing access to reliable and clean water on tribal
lands. HHS is still currently reviewing the language and
implications of this bill, but that said, the Department would
like to continue to work with the bill's sponsors and Committee
to ensure compatibility with existing sanitation facility
authorities and determine the best way to serve non-eligible
homes and commercial properties located within tribal
communities.
Thank you again for the opportunity to testify today. Thank
you, Senators Cortez Masto and Bennett, who have led these
legislative efforts to fix systemic challenges in Indian
Country. We look forward to continuing our work with Congress
on these bills.
As always, HHS is committed to working closely with tribal
communities and our external partners and understand the
importance of working together to address the needs of American
Indians and Alaska Natives.
[The prepared statement of Ms. Egorin follows:]
Prepared Statement of Hon. Melanie Anne Egorin, Ph.D., Assistant
Secretary for Legislation, Health and Human Services
Good afternoon, Chairman Schatz, Vice Chair Murkowski, and Members
of the Committee. Thank you for the opportunity to provide testimony on
two important legislative proposals before your Committee, and for your
continued support for Department of Health and Human Services (HHS or
Department) efforts to improve the health and well-being of American
Indians and Alaska Natives (AI/AN). Your consideration today of Senator
Cortez Masto's IHS Workforce Parity Act of 2023, and Senator Bennet's
Tribal Access to Clean Water Act of 2023 underscores that commitment to
improving the quality of life in Indian Country.
I am Melanie Anne Egorin, the Assistant Secretary for Legislation
(ASL) at HHS. My office serves as the primary link between the
Department and Congress. The Office of the ASL provides technical
assistance on legislation to Members of Congress and their staff,
facilitates informational briefings relating to Department programs to
support policy development by Congress, and supports implementation of
legislation passed by Congress.
The Department has been pleased to collaborate with Congress and
this Committee to investigate the many challenges facing Indian
Country. We have been engaged specifically in recent months as the
Committee has examined issues with water access in Native communities,
and operational challenges such as workforce recruitment and retention,
and the direct and secondary impacts that the Indian Health Service has
faced in combatting the growing fentanyl crisis. As both IHS Director
Roselyn Tso and Deputy Director Benjamin Smith have respectively
testified to this committee, we remain committed to working with
Congress to improve health for AI/AN communities including finding
solutions to challenges related to clean water access and workforce
shortages. We are deeply appreciative of the work of Senators Cortez
Masto and Bennet to draft legislation that aims to tackle some of these
urgent problems in Indian Country.
The IHS, as a rural health care provider, experiences difficulty
recruiting and retaining health care professionals. In particular,
recruiting physicians and other primary care clinicians has been
especially challenging. There are currently over 1,856 IHS vacancies
for health care professionals including: physicians, dentists, nurses,
pharmacists, physician assistants, and nurse practitioners. Staffing
shortages are particularly prevalent in the behavioral and mental
health fields, which has only exacerbated the concurrent substance use
crisis and suicide crisis that tribes across the country are facing in
their communities. AI/ANs overdose mortality rates and suicide rates
remain the highest compared to other racial and ethnic groups.
Workforce challenges--and the impacts on care that come with them--
are one of the top concerns raised to the Department by tribes. The IHS
continues to support new strategies to develop the workforce and
leverage advanced practice providers and paraprofessionals to improve
the access to quality care in AI/AN communities. Ultimately, the Indian
Health Service needs additional authorities and resources to build out
their workforce pipeline. That is why the President's budget has
included a number of proposals dating back to Fiscal Year 2019 that
have sought to make the IHS more competitive with other federal
agencies in their hiring process and reduce systemic barriers to
recruitment and retention. HHS looks forward to working with Congress
on policy solutions to this effect, several of which are outlined
below.
I want to also reiterate that the Biden-Harris Administration
agrees that water is a sacred resource that must be protected. The
Administration and HHS have worked hard to make good on decades of
chronic underinvestment in infrastructure for AI/AN communities. The
bipartisan efforts of Congress--including many champions in this room--
helped to ensure that critical funds for clean drinking water and
modern wastewater and sanitation systems were included in the
Infrastructure Investment and Jobs Act (IIJA). The Department of Health
and Human Services and the IHS are grateful for this partnership with
Congress, and our shared commitment to ensure that this historic
funding is implemented successfully and that these dollars reach Indian
Country as quickly as possible. That being said, too many tribal
families still do not have access to clean water and reliable
wastewater infrastructure.
S. 3022, IHS Workforce Parity Act of 2023
The IHS Workforce Parity Act, would amend the Indian Health Care
Improvement Act to allow recipients of the IHS scholarship and loan
programs to fulfill their service obligations through half-time
clinical practice.
Under current law, the Indian Health Care Improvement Act requires
recipients of IHS Health Professions Scholarships or loan repayments to
provide clinical services on a full-time basis. The Public Health
Service Act (PHSA) was amended by the Patient Protection and Affordable
Care Act (ACA) to permit certain National Health Service Corps (NHSC)
loan repayment and scholarship recipients to satisfy their service
obligations through half-time clinical practice for double the amount
of service time or, for NHSC loan repayment recipients, to accept half
the loan repayment award amount in exchange for a two-year service
obligation fulfilled on a half-time basis. The PHSA defines ``full-
time'' clinical practice as a minimum of 40 hours per week, for a
minimum of 45 weeks per year. It also defines ``half-time'' as a
minimum of 20 hours per week, for a minimum of 45 weeks per year.
The Indian Health Care Improvement Act would permit both IHS Health
Professions Scholarship and loan repayment recipients to fulfill
service obligations through half-time clinical practice, under
authority similar to that now available to the NHSC Loan Repayment
Program (LRP) and Scholarship Program. Thus, if similar authority
provided in section 331(i) of the PHSA were extended to IHS, IHS loan
repayment and scholarship recipients would have more options and
flexibility to satisfy their service obligations through half-time
clinical work for double the amount of service time or to accept half
the amount of loan repayment award in exchange for a two-year service
obligation. This legislative change would create parity between IHS and
the NHSC programs and enable IHS to make better use of these tools to
recruit and retain key professionals in a highly competitive
environment.
S. 3022 as drafted attempts to model the language used in the NHSC
demonstration language. It should be noted, however, that the NHSC
language combines the two programs--Scholarship and LRP--in their
language whereas S. 3022 separates Scholarship and LRP. Additionally,
IHS is still examining how the text in S. 3022 might apply to the IHS
Health Professions Scholarship, a tool that plays a significant role in
the recruitment and retention of the health care professionals needed
to fill workforce vacancies. Lastly, the NHSC language goes further in
that the recipient has to agree to the conversion to full-time
equivalents in determining damages if a breach occurs. IHS would like
to work with the drafters of S. 3022 to ensure the language fits within
the IHS Scholarship and Loan Repayment Program.
The IHS Workforce Parity Act is certainly aligned with the goals of
the IHS in many respects. The Fiscal Year (FY) 2024 President's Budget
includes a similar proposal to permit both IHS scholarship and loan
repayment recipients to fulfill service obligations through half-time
clinical practice. The ability to provide scholarship and loan
repayment awards for half-time clinical service would make these
recruitment and retention tools more flexible and cost-effective,
providing incentives for an additional pool of clinicians and other
medical providers that otherwise may not consider a commitment to the
IHS federal, tribal, and urban Indian sites. Having similar authority
as the NHSC would increase the ability of the IHS to recruit and retain
health care clinicians to provide primary health care and specialty
services and otherwise support the IHS and HHS priorities.
Additional half-time direct care employees could also reduce the
number and cost of Purchased/Referred Care program referrals,
especially at sites that do not need full-time specialty care services.
There are also a number of smaller rural IHS sites where clinicians
will be able to provide a minimum of half-time clinical services with
the remainder of their time devoted to much needed administrative/
management responsibilities. This proposal will provide flexibility for
providers who might not otherwise consider service in the IHS by
allowing part-time practice in IHS to coincide with a part-time private
practice, as well as part-time practice in the IHS combined with part-
time administrative duties within the IHS.
Human Resources Proposals
As the IHS continues to prioritize recruitment and retention of
providers in our system, we would encourage members of this Committee
to review other proposals in the FY 2024 President's Budget that would
better enable the IHS to attract top talent. Many of these proposals
are budget neutral--small fixes that would have a major impact on the
efficacy and quality of the IHS.
For example, the IHS seeks a tax exemption for Indian Health
Service Health Professions Scholarship and Loan Repayment Programs.
Exempting the IHS Loan Repayment Program would allow the IHS to award
an additional 190 loan repayment contracts in a given year. Thus, the
IHS would be better able to increase the number of health care
providers entering and remaining within the IHS to provide primary
health care and specialty services.
The agency is also seeking the discretionary use of all Title 38
Personnel authorities that are currently available to the Veterans
Health Administration to pay higher salaries and offer more flexible
time off to their providers. Typically, the private sector can offer
candidates better scheduling options and paid time off--particularly
important benefits to providers who serve in remote and rural
locations. The VHA has demonstrated the impact of these authorities on
public sector's ability to hire for these critical roles, particularly
in rural areas. As such, the IHS faces specific public sector
competition in the area of annual leave accrual. Supervisors report
anecdotally that the IHS has lost many candidates to the private sector
and VHA due to this difference in accrual rates.
The IHS also seeks permanent authority to hire and pay experts and
consultants. Hiring experts and consultants is another tool IHS can use
to strengthen its workforce and better serve the AI/AN population.
These highly specialized individuals can bring added skills, knowledge,
and expertise to meet mission-critical tasks. To combat future
pandemics, emergencies, and unique health-care challenges, it would be
beneficial to hire experts and consultants to provide additional high-
level resources to the IHS unavailable within the current workforce.
Additionally, the IHS seeks legislative authority to conduct
mission critical emergency hiring needs beyond 30-day appointments.
Critical hiring occurs when an agency needs to fill positions to meet
agency requirements brought on by natural disasters, emergencies, or
threats. The IHS has previously used this hiring authority to fill
positions in nursing, facility management, radiology, and many other
critical areas to ensure the operation of IHS facilities and quality
patient care. Lengthening emergency hire appointments from 30 to 60
days would better enable the IHS to effectively provide services and
staff health care facilities from both an operational and budgetary
perspective. The effort to hire, onboard, and vet candidates through
the pre-clearance and background investigation process is significant,
reducing the benefit of this hiring tool.
S. 2385, Tribal Access to Clean Water Act of 2023
The Tribal Access to Clean Water Act (S. 2385) aims to expand HHS'
role in providing access to reliable, clean, and drinkable water on
tribal lands. While this legislation has cross cutting implications for
multiple federal agencies, I will focus on the provisions that pertain
to HHS and IHS' Sanitation Facilities Construction Program.
The IHS is required by statute to maintain an inventory of
sanitation deficiencies for existing Indian homes and communities, to
prioritize those deficiencies, and to annually report those
deficiencies to Congress. Since 1989, the IHS has annually reported
these needs to Congress in the form of projects, which are currently
catalogued in the Sanitation Deficiency System (SDS). Projects are
identified by the facilities to be provided, the cost of those
facilities, and the number of homes to be served by the facilities.
Funding for projects is distributed to the IHS Areas based on an
allocation formula that takes into account the relative needs
identified in each IHS Area's SDS inventory. The Sanitation Facilities
Construction (SFC) program employs a cooperative approach for planning,
designing, and constructing sanitation facilities serving American
Indian and Alaska Native communities. Each project is initiated at the
request of a Tribe or Tribal Organization, and coordination is
maintained throughout project planning, design, and construction.
IHS is currently still reviewing the language and implications of
S.2385. The bill would amend current law related to the ``Indian homes,
communities, and lands'' for which the Secretary has authority to
construct, improve, extend, or otherwise provide and maintain essential
sanitation facilities, to include community structures that are
essential to the life of a AI/AN community. These community structures
are further defined as facilities that provide indispensable
educational, economic, and community services, such as schools,
hospitals, nursing homes, teachers' homes, tribal offices, and post
offices. The bill would also authorize funds to construct, improve, or
maintain essential sanitation facilities, including domestic and
community water supplies and facilities, drainage facilities, and
sewage-disposal and waste-disposal facilities, for community
structures. Finally, the Tribal Access to Clean Water Act would
authorize the Secretary to provide financial assistance for the
operation and maintenance of water facilities serving AI/AN
communities. It includes language that would prioritize funding awards
for the maintenance of water facilities in order of the facilities that
are in the most need of assistance.
I do want to highlight that this bill appears to be in conflict
with the current IHS authority. Statute currently authorizes IHS to
provide necessary water and sewer for ``Indian homes, communities, and
lands'' Under existing law, the phrase Indian homes, communities, and
lands is undefined. IHS has interpreted this authorization as being
related to the provision of services to AI/AN and generally barring the
use of SFC project funds for commercial establishments and facilities
associated with non-Indians. IHS policy reflects this interpretation by
requiring Indian communities to identify matching funds to be used in
IHS-funded projects to cover the cost of these ineligible facilities.
The draft legislation would provide a definition for ``Indian homes,
communities, and lands'' that is inconsistent with the current IHS
policy and potentially inconsistent with statutory mandates regarding
the provision of services by IHS to non-Indians. This new definition
could cause the IHS challenges in the orderly administration of the
program in the form of final offers or Title I proposals seeking to
compel allocations of IHS's appropriation in ways that depart from the
current formula-based approach, which treats all Tribes equally,
focuses only on IHS beneficiaries, and does not subsidize commercial
establishments.
The IHS would like to work with the bill sponsors and the Committee
to determine how best to serve the non-eligible homes and commercial
properties, including those listed in this bill, that are located
within tribal Communities. The IHS would also like to continue to work
with the drafters of S. 2385 to ensure compatibility with the IHS
Sanitation Facilities Construction Program's existing authorities.
Thank you again for the opportunity to testify today, and thanks to
Senators Cortez Masto and Bennet, who have led these legislative
efforts to fix systemic challenges in Indian Country. We look forward
to continuing our work with Congress on these bills and as always,
welcome the opportunity to provide technical assistance as requested by
the Committee or its Members. HHS is committed to working closely with
tribal communities and other external partners and understands the
importance of working together to address the needs of American Indians
and Alaska Natives.
The Chairman. Thank you very much.
Ms. Isom-Clause, please proceed.
STATEMENT OF KATHRYN ISOM-CLAUSE, DEPUTY ASSISTANT SECRETARY,
INDIAN AFFAIRS, DEPARTMENT OF THE
INTERIOR
Ms. Isom-Clause. Thank you. Good morning, Chairman Schatz,
Vice Chair Murkowski and members of the Committee. My name is
Kathryn Isom-Clause. I am Taos Pueblo, and I am the Deputy
Assistant Secretary for Policy and Economic Development for
Indian Affairs at the Department of the Interior.
Thank you for the opportunity to present testimony on four
bills before the Committee today.
The Biden Administration recognizes that water is essential
for people to lead healthy, safe, and fulfilling lives on
tribal lands. Water is among the most sacred and valuable
resources for tribal nations.
The Tribal Access to Clean Water Act of 2023 seeks to help
fund water infrastructure projects in tribal communities by
increasing funding, including $90 million over five years for
the Bureau of Reclamation's Native American Affairs Technical
Assistance Program, or TAP. TAP provides technical assistance
to tribes to develop, manage, and protect their water and
related resources.
The program has supported a broad range of activities
including water needs assessments, improved water management
studies, water quality data collection and assessments, and
water measurement studies.
Work under TAP is carried out in different ways, sometimes
by Reclamation under cooperative agreements, working
relationships with tribes. Other times, tribes carry out the
work themselves. Alternatively, Reclamation may provide
training to enhance tribal members' knowledge and expertise in
the use, protection, and development of water resources.
The Department is committed to further developing this
program in the coming years, including with the Fiscal Year
2024 President's budget request of $23.5 million. We appreciate
the interest and support of the sponsors of S. 2385 in TAP and
as partners in efforts to address the longstanding water crises
that continue to undermine public health and economic
development in Indian Country.
Next up is S. 2868. The Lower Sioux Indian Community is a
federally recognized Indian tribe organized under a
constitutional and bylaws adopted by the community's membership
in 1936, pursuant to Section 16 of the Indian Reorganization
Act, or IRA. In 1937, the community was issued and ratified a
corporate charter pursuant to Section 17 of the IRA.
In a November 2021 resolution, the community stated that it
has not used the charter since ratification in 1937, and it
serves no function. The IRA requires that any charter so issued
shall not be revoked or surrendered except by act of Congress.
S. 2868, at the request of the community, would revoke the
charter.
Consistent with the Administration's support for tribal
self-determination and self-governance, the Department believes
that the decision of whether to maintain or revoke such a
charter shall ultimately be the community's, and therefore
supports S. 2868.
S. 2796 would confer jurisdiction to the United States
Court of Federal Claims to hear, determine, and render judgment
regarding the Miami Tribe of Oklahoma's land claims under the
Treaty of Grouseland, and would remove legal or equitable
defenses based on the passage of time, including the statute of
the limitations.
The jurisdiction conferred to the United States Court of
Federal claims expires unless a claim is filed under paragraph
(1) of S. 2796 by the tribe within one year of enactment of the
legislation. The bill extinguishes all other claims to title of
the Miami Tribe of Oklahoma or any member, descendant, or
predecessor in interest to the Miami Tribe of Oklahoma to land
in the State of Illinois.
The Department needs to better understand the claims by the
Miami Tribe of Oklahoma and the impacts of this legislation and
any remedy sought by the tribe. The Department therefore takes
no position on the legislation at this time.
Finally, S. 3230. The Winnebago Reservation was established
by the treaty of March 8th, 1865, in exchange for cession of
the Winnebago Tribe's lands in the Dakota Territory. However,
in the 1970s, the tracts identified in S. 3230 were acquired by
the U.S. Army Corps of Engineers. S. 3230 would transfer the
identified lands from the Army Corps of Engineers to the United
States to be held in trust for the benefit of the Winnebago
Tribe.
The Department of the Interior supports S. 3230. This bill
is in line with the Administration's commitment to honor treaty
rights, respect tribal sovereignty and support the right of
tribal governments to acquire land in trust in furtherance of
their self-determination.
Chairman Schatz, Vice Chair Murkowski, members of the
Committee, thank you for the opportunity to provide the
Department's views.
[The prepared statement of Ms. Isom-Clause follows:]
Prepared Statement of Kathryn Isom-Clause, Deputy Assistant Secretary,
Indian Affairs, Department of the Interior
Good morning, Chairman Schatz, Vice Chairman Murkowski, and members
of the Committee. My name is Kathryn Isom-Clause and I am the Deputy
Assistant Secretary for Policy and Economic Development for Indian
Affairs at the Department of the Interior (Department). Thank you for
the opportunity to present testimony on S. 2385, Tribal Access to Clean
Water Act of 2023; S. 2868, A bill to accept the request to revoke the
charter of incorporation of the Lower Sioux Indian Community in the
State of Minnesota at the request of that Community, and for other
purposes; S.2796, A bill to provide for the equitable settlement of
certain Indian land disputes regarding land in Illinois, and for other
purposes; and S. 3230, Winnebago Land Transfer Act.
S. 2385, Tribal Access to Clean Water Act of 2023
The Biden Administration recognizes that water is essential for
people to lead healthy, safe, and fulfilling lives on Tribal lands.
Water is among the most sacred and valuable resources for Tribal
nations. The Administration further recognizes that long-standing water
crises continue to undermine public health and economic development in
Indian Country.
The Tribal Access to Clean Water Act of 2023 seeks to help fund
water infrastructure projects in Tribal communities and provide clean
water to Native American households who currently lack access by
increasing funding through the Indian Health Service, Bureau of
Reclamation (BOR), and the United States Department of Agriculture. The
bill provides $90 million over five years for the BOR's Native American
Affairs Technical Assistance Program (TAP).
TAP provides technical assistance to Indian Tribes to develop,
manage, and protect their water and related resources. The program has
supported a broad range of activities in each year since its inception
in the early 1990s. Such activities have included water needs
assessments, improved water management studies, water quality data
collection and assessments, and water measurement studies. In FY 2022
and FY 2023, TAP received approximately $8 million in each fiscal year,
which was a significant increase from the $3-5 million received
annually from FY 2018 to FY 2021.
Work under TAP is carried out in different ways. Sometimes the work
is performed by the BOR under cooperative working relationships with
Indian Tribes, which provide the Tribes with opportunities to benefit
from BOR's technical expertise and resources. Other times, the work is
carried out by Indian Tribes. Alternatively, assistance may be provided
in the form of training to enhance Tribal members' knowledge and
expertise in the use, protection, and development of water resources.
Work may also be carried out in partnership with other governmental or
non-governmental entities, thereby enabling assistance provided to
Tribes with greater efficiency.
The Department is committed to further developing this program in
the coming years, including with the FY 2024 President's budget request
of $23.5 million. We appreciate the interest and support of the
sponsors of S. 2385 in TAP.
S. 2868, A bill to accept the request to revoke the charter of
incorporation of the Lower Sioux Indian Community in the State
of Minnesota at the request of that Community, and for other
purposes
The Lower Sioux Indian Community (Community) is a federally
recognized Indian Tribe organized under a Constitution and Bylaws
adopted by the Communities membership on May 16, 1936, pursuant to
Section 16 of the Indian Reorganization Act (IRA) under which it
organizes its businesses. On July 17, 1937, the Community was issued
and ratified a corporate charter (Charter) pursuant to Section 17 of
the IRA. The IRA requires that, ``Any charter so issued shall not be
revoked or surrendered except by Act of Congress,'' (25 U.S.C. 5124).
S. 2868, at the request of the Community, would revoke the Charter.
In a November 2021 resolution, the Community stated that it has not
used the Charter since ratification in 1937 and it serves no function.
The Department, consistent with the Administration's support for Tribal
self-determination and self-governance, believes that the decision
whether to maintain or revoke such a charter ultimately should be the
Community's and therefore supports S. 2868.
S. 2796, A bill to provide for the equitable settlement of certain
Indian land disputes regarding land in Illinois, and for other
purposes
S. 2796 would confer jurisdiction to the United States Court of
Federal Claims to hear, determine, and render judgment regarding the
Miami Tribe of Oklahoma's land claims under the Treaty of Grouseland (7
Stat. 91), signed August 21, 1805, and would remove legal or equitable
defenses based on the passage of time, including the statute of
limitations. The jurisdiction conferred to the United States Court of
Federal Claims expires unless a claim is filed under paragraph (1) of
S. 2796 by the Miami Tribe of Oklahoma within one year of enactment of
this legislation. The bill extinguishes all other claims to title of
the Miami Tribe of Oklahoma, or any member, descendant, or predecessor
in interest to the Miami Tribe of Oklahoma to land in the State of
Illinois.
The Department needs to better understand the claims by the Miami
Tribe of Oklahoma and the impacts of this legislation on those claims
and any remedy sought by the Tribe. The Department therefore takes no
position on the legislation at this time.
S. 3230, Winnebago Land Transfer Act
S. 3230, the Winnebago Land Transfer Act of 2023, would transfer
administrative jurisdiction of certain federal lands from the Army
Corps of Engineers to the Bureau of Indian Affairs, to take such lands
into trust for the Winnebago Tribe of Nebraska (Winnebago Tribe). S.
3230 would apply to lands on the east side of the Missouri River,
located within Woodbury County and Monona County, Iowa-specifically, a
portion of Tract No. 119, all of Tract 210, and all of Tract 113. Lands
placed into trust by this legislation will not be eligible for Class II
and III gaming under the Indian Gaming Regulatory Act (25 U.S.C. 2701
et seq.).
The Winnebago Reservation was established by the Treaty of March 8,
1865, in exchange for cession of the Winnebago Tribe's lands in the
Dakota Territory. The Treaty of 1865 designated that the Winnebago
Reservation would be set apart for the occupation and future home of
the Winnebago Indians, forever. However, in the 1970s, the tracts
identified in S. 3230 were acquired by the U.S. Army Corps of Engineers
through an erroneous condemnation action and eminent domain. S. 3230
would rightfully restore the Winnebago Reservation boundaries, insofar
as the tracts identified are concerned, and would be in keeping with
the United States' promise to the Winnebago Tribe in the Treaty of
March 8, 1865.
The Department of the Interior supports S. 3230. This bill is in
line with the Administration's commitment to honor treaty rights,
respect Tribal sovereignty, and support the right of Tribal governments
to acquire land in trust in furtherance of their self-determination.
Conclusion
Chairman Schatz, Vice Chairman Murkowski, and Members of the
Committee, thank you for the opportunity to provide the Department's
views.
The Chairman. Thank you very much.
Chairman Heart, welcome, and please proceed with your
testimony.
STATEMENT OF HON. MANUEL HEART, CHAIRMAN, UTE MOUNTAIN UTE
TRIBE
Mr. Heart. Thank you, Chairman Schatz. On behalf of the Ute
Mountain Ute Tribe, thank you for the opportunity to provide
testimony on S. 2385, the Tribal Access to Clean Water Act of
2023.
One of the most significant issues facing the tribe today
is access to reliable, clean drinking water. Without reliable,
clean drinking water, the Ute Mountain Ute people cannot
sustain their sovereign right to self-sufficiency and to self-
government. The funding made available through the Tribal
Access to Clean Water Act of 2023 is crucial to ensuring the
tribe has access to reliable, clean drinking water and is a
necessary first step to meeting the United States treaty
obligation and trust responsibility to Ute Mountain Ute people.
Despite our tribe's contemporary success in developing
irrigation systems and award-winning farming operations, it is
still the case, 101 years after making these comments, that the
Ute Mountain Ute people remain without Federal support for
adequate supply of water. I am here today to remind the United
States of its obligations once again to the Ute Mountain Ute
people, and to collect on the promise made long ago to Chief
Ignacio and all the Ute Mountain Utes.
The Ute Mountain Utes' sovereign lands are in the States of
Colorado, New Mexico, and Utah, magnifying the issues of access
to clean water three-fold. The tribe faces unique issues
related to access of a reliable clean water source of drinking
water on its reservation lands in each of those States.
I would like to address two of the States' access to clean
water, in Utah and in Colorado. Although the three negotiations
and settlements claims for its Federal reserve rights in
Colorado in 2000, the tribe remains unable to access critical
water resources due to lack of water infrastructure, 24 years
later.
As you may know, the Colorado Ute Settlement Act of 2000
guaranteed the Ute people 16,525 acre-feet of water from the
Animas-La Plata project, ALP, at Lake Nighthorse. However, year
after year, the tribe has been unable to access its water due
to the lack of water infrastructure connecting the ALP project
to the tribe's reservation lands.
Although the tribe has spent significant time and resources
to develop access to its water and ALP, the tribe cannot do
without financial assistance from the Federal Government. The
funding that would be able to be available as part of Senate
Bill 2385 both for technical assistance and for the
development, use and control of water and the installation of
essential community facilities and necessary related equipment
is crucial for the advancement for the Federal Government's
treaty obligation and trust responsibility to the Ute Mountain
Ute people.
Today, we have 16,000 acre-feet of water that we have no
access to and that we have no infrastructure in place. We are
not even compensated for it. Yet it sits there decade after
decade.
Access to clean water in Utah. Access to reliable clean
drinking water is a concern for all the tribe's lands, but
perhaps none more so than in Utah. As previously mentioned, the
tribe has non-contiguous reservation lands in southeastern
Utah, separate from its reservation lands in southwestern
Colorado and New Mexico.
White Mesa is the primary tribal community in the Utah
portion of the tribe's lands. The tribe and individual tribal
citizens also hold trust along the lands along the west and
east of White Mesa along Cottonwood Canyon. The current source
of water for the majority of the use for the White Mesa
Community is a deep-water aquifer.
The White Mesa Uranium Mill is located approximately 2.5
miles north of the White Mesa Tribal Community. It is the only
conventional uranium mill still in operation in the United
States. The tribe and its tribal citizens are very concerned
about the potential for the mill to infiltrate and contaminate
the aquifer relied upon by the tribe for its water supply.
The tribe has spent significant funds to build a water
treatment and testing facility in White Mesa. However, the
tribal community is afraid of drinking contaminated water and
no one will consume it.
Presently, the tribe is in discussion with the State
engineer of Utah in settling the tribe's water rights in White
Mesa. Water quality issues will be a key piece of those
discussions and to ensure access to clean drinking water is
part of those negotiations. A Federal presence in those
discussions, including the EPA, is critical to ensure access to
clean water for White Mesa and all the Ute Mountain Ute tribal
communities.
In addition to resources devoted to settling the tribe's
water fights, access to technical assistance, funding under
Senate Bill 2385 would help ensure unique issues at White Mesa
are adequately addressed. We have concerns and we are asking
for an epidemiology study from the IHS for the Albuquerque
Region Area, and also with the State of Utah.
Thank you for your consideration of this testimony. We look
forward to continuing to work with you to enact legislation to
support tribal access to reliable, clean drinking water on the
Ute Mountain Ute Reservation lands in Utah, Colorado, and New
Mexico.
[The prepared statement of Mr. Heart follows:]
Prepared Statement of Hon. Manuel Heart, Chairman, Ute Mountain Ute
Tribe
Introduction
Access to clean water is a basic human right. It is essential for
people to live with dignity and foundational for human health, growing
economies, and a basic level of existence for communities. It is
unacceptable that in the 21st Century, many Native Americans must
travel for miles to collect water that is safe for drinking and
everyday use. An estimated 48 percent of households on Indian
reservations do not have access to reliable water sources, clean
drinking water, or adequate sanitation. \1\
---------------------------------------------------------------------------
\1\ House Committee on Natural Resources, Democratic Staff, Water
Delayed is Water Denied: How Congress has Blocked Access to Water for
Native Families (Oct. 2016), https://democrats-
naturalresources.house.gov/water-delayed-is-water-denied.
---------------------------------------------------------------------------
Household water security is defined as ``the safe and reliable
access to sufficient quantity and quality of water for household
consumption, production, and cleanliness.'' \2\ ``In the United States,
potable water infrastructure is broadly assumed to be `universal' in
its coverage, to the point where the U.S. Census Bureau has recently
considered dropping its plumbing question from the [American Community
Survey] questionnaire.'' \3\ However, despite public perception,
``universalized water infrastructure remains an incomplete promise for
different populations in different places across the nation[.]'' \4\
---------------------------------------------------------------------------
\2\ Shiloh Deitz & Katie Meehan, Plumbing Poverty: Mapping Hot
Spots of Racial and Geographic Inequality in U.S. Household Water
Insecurity, 109 Annals Am. Ass'n Geographers 1 (2019) [hereinafter
Plumbing Poverty].
\3\ Id. at 1, 7 (2019).
\4\ Id. at 8.
---------------------------------------------------------------------------
Native American households are more likely to lack adequate water
services than any other group in the United States. Existing water
infrastructure on reservations continues to deteriorate and inadequate
water quality remains pervasive across Indian Country. According to the
U.S. Water Alliance, Native households are 19 times more likely than
white households to lack indoor plumbing. \5\ This is not a random
disparity--the lack of access to clean and safe drinking water in
Tribal communities reflects historical and persisting racial
inequities.
---------------------------------------------------------------------------
\5\ DigDeep-US Water Alliance, Closing the Water Access Gap in the
United States (2019), https://www.digdeep.org/close-the-water-gap.
---------------------------------------------------------------------------
The United States government has long promised all Native American
Tribes a ``permanent homeland,'' a livable reservation,'' and a home
``conducive to the health and prosperity of the Indians.'' But these
promises are broken when our people do not have clean water to drink or
for cooking and personal hygiene. A permanent, livable, and prosperous
homeland cannot exist without this minimum requirement of life--access
to an adequate and healthful supply of drinking water.
In our White Mesa Ute Community, groundwater for the community
supply is of poor quality. We have a treatment system that removes
current contaminants. Operations are challenging and the future is
uncertain. Two miles up the road we have a uranium mill that has
thousands of acre feet of toxic radioactive waste stored there forever.
The license requires that the reclamation plan be safe for 1000 years.
Tribe has been here tens of thousands of years and this industry has
existed less than 100 years. We simply do not know if the mill will
affect the drinking water aquifer in 100 years or 300 or 1000.
In the 2000's the Tribe petitioned the Environmental Protection
Agency to designate the drinking water aquifer as a sole-source
aquifer. The petition was denied, probably because of the uranium mill
and the multitude of federal decisions it would influence. However, if
the N aquifer is not a sole-source, where do we get another source of
water? There is not enough surface water--the City of Blanding told us
that. Either designate it as a sole source or inform us of another
source.
In our Towaoc community, the water line from the Dolores Project
was installed over 30 years ago. It is ductile iron and subject to
breaks due to the shifting and saline geology. We have a few breaks
each year causing temporary water conservation measures and quality
issues. Each repair costs us over $50,000 and sometimes hundreds of
thousands. We have replaced a two mile section and we are poised to
replace another section in the next year, but there is still over 15
miles of pipeline to replace to get clean water to our community.
Ongoing housing expansion, repair and replacement are a constant driver
for funding for drinking water and wastewater infrastructure in Towaoc.
Thanks to the sponsors of Tribal Clean Water legislation in the
117th Congress, funding for safe drinking water systems for Tribal
communities received a significant boost from the Bipartisan
Infrastructure Law and the Inflation Reduction Act. While
groundbreaking and long overdue, the funding now available for
construction and repair of domestic water systems in Indian country is
not a complete solution. The Tribal Access to Clean Water Act, S. 2385,
is intended to fill some of the remaining gaps and ensure that the
benefit of the investments in Tribal water infrastructure made in the
previous legislation are fully realized. The various components of the
Act and the needs that have prompted this legislation are explained
below.
Technical Assistance. Many, if not most, Tribes lack a
dedicated water resource staff, program, or department.
Identifying and successfully applying for the various forms of
federal funding available is an arduous and time-consuming
task. Most Tribes do not have a qualified grant writer or
sufficient staff to handle the research and application
process. In addition, many Tribes require new or rehabilitated
infrastructure to allow access to clean drinking water, but do
not currently have ``shovel ready'' projects that can take
advantage of construction funding provided in the BIL and IRA.
Technical assistance is needed to allow Tribes to plan and
design the systems necessary to remedy the longstanding problem
of lack of access to clean drinking water, and to successfully
apply for available funding.
The Act would authorize the U.S. Department of Agriculture to
make rural development grants and loans for technical
assistance, in addition to the existing authorization for
construction purposes. It would also authorize additional
funding to USDA, the Bureau of Reclamation, and the Indian
Health Service for technical assistance to Tribes. This funding
could also assist Tribes in developing the managerial,
financial, and regulatory capacity necessary for a fully
functional and self-sustaining utility, a foundation for
ensuring that Tribal water systems will continue to operate as
intended into the future.
Making projects ``shovel ready'' can be cumbersome and
expensive. To get a project for a water infrastructure project
to that point many tasks need unique expertise and require
investment by the project proponent: engineering, community
planning, surveys for resources, comprehensive NEPA writing and
execution, identification of cost-share resources, and other
components specific to a project. Providing opportunity for
technical assistance grants to assist in getting projects there
can be extremely important to tribes in this situation.
Community Facilities. IHS construction funding is not currently
available to connect essential community facilities, like
schools and clinics, to centralized water and sanitation. While
IHS's existing authorization allows for provision of water
service to ``Indian homes, communities, and lands,'' IHS has
self-limited its deployment of construction funding to projects
and connections for individual homes. That self-imposed
constraint has resulted in schools, teacher dormitories,
nursing homes, Tribal government buildings, and other essential
community structures without connection to basic water service.
The Act would direct IHS to include community facilities in its
overall deployment of construction funding. This inclusion is
absolutely necessary to support a basic level of Tribal
economic development.
We support the Indian Health Service improving its policies to
better assist the Tribe with community facility connections.
Operation and Maintenance. The ongoing operation and
maintenance of water and sanitation infrastructure is a
difficult burden in Indian country. Tribes cannot rely on the
same types and volumes of revenue streams to support operation
and maintenance of water systems as most municipal water
providers. For example, Tribes cannot impose and collect
property taxes on Tribal land (as the land is owned by the U.S.
Government) which many providers rely on to finance new water
infrastructure and significant capital improvements. In
addition, the economic character of the customer base is
generally less able to sustain the kinds of routine O&M costs
than the average American water customer. Finally, the remote
and rural nature of many Tribal reservations results in higher
routine O&M expenditure because of longer distribution lies,
greater pumping requirements, and higher costs of repair.
Initial and temporary O&M assistance helps to ensure that the
benefits of any investment in infrastructure are fully
realized.
In recognition of these unique challenges, the IHS has been
authorized since the 1950s to provide operation and maintenance
assistance for Tribal water and sanitation facilities when
necessary to avoid health hazard or to protect the Federal
investment in sanitation facilities. \6\ To date, however,
Congress has never appropriated funding to IHS to carry out
this authorization. The Act would remedy this longstanding
deficiency.
---------------------------------------------------------------------------
\6\ The Indian Sanitation Facilities Act authorizes the Surgeon
General ``to construct, improve, extend, or otherwise provide and
maintain by contract or otherwise, essential sanitation facilities[.]''
Pub. L. No. 86-121, 73 Stat. 267 (1959) (codified at 42 U.S.C.
2004a(a)). Pursuant to the Indian Health Care Improvement Act, the
Secretary is authorized to provide ``(A) Financial assistance to Indian
Tribes and communities in the establishment, training, and equipping of
utility organizations to operate and maintain Indian sanitation
facilities; (B) Ongoing technical assistance and training in the
management of utility organizations which operate and maintain
sanitation facilities; (C) Operation and maintenance assistance for,
and emergency repairs to, Tribal sanitation facilities when necessary
to avoid health hazard or to protect the Federal investment in
sanitation facilities'' as well as ``financial assistance to Indian
Tribes and communities in an amount equal to the costs of operating,
managing, and maintaining the facilities provided[.]'' Pub. L. No. 94-
437 (1976) (codified at 25U.S.C. 1632(b)(2), (e)(1)).
---------------------------------------------------------------------------
The Tribe is challenged with consistent drinking water and
wastewater operations and operators. Staff turnover is
prevalent and competitive salary opportunities are not usually
available. Obtaining a certification at the appropriate level
to be an operator is a career level accomplishment, taking
years of experience in addition to successful course and
testing completion. Knowing the systems requiring operation is
paramount and most are different. With a limited amount of STEM
guided career paths in the Tribal population, the chances of
having a Tribal Member get the education and experience to be
an operator is low. To keep an employee with these
qualifications by virtue of salary alone in untenable. The
combination of these makes it tough to keep operators.
In our smaller Utah community, we have a treatment system, but
we do not have a certified operator. This law could help the
Tribe to maintain and operate the water system in White Mesa.
We support the Indian Health Service assisting with the
maintenance and operations as needed and most-especially with
training and hands-on learning about water and wastewater
systems and the certification required for them.
Conclusion
The Ute Mountain Ute Tribe supports passage of the Tribal Access to
Clean Water Act, S. 2385, recognizing the critical importance of access
to reliable, clean drinking water for Native Americans. In addition,
the Tribe supports Senate Resolution 355 affirming the responsibility
of the Federal Government to ensure such water access and calling on
the Executive Branch to employ a ``whole of government'' approach to
ensure access to reliable, clean drinking water to households on Indian
reservations, in Alaska Native villages, and in Native Hawaiian
communities.
Failure to provide basic water service cannot be reconciled with
the general trust responsibility of providing a permanent homeland to
Tribes and promoting the survival and welfare of their communities.
``Ensuring access to water and sanitation for all people is not simply
a question of water resources, technology and infrastructure, but also
of setting priorities, tackling poverty and inequality, addressing
societal power imbalances, and above all, political will.'' \7\
---------------------------------------------------------------------------
\7\ U.N., Outcome of the International Experts' Meeting on the
Right to Water, Paris, France, July 7-8, 2009, at 2.
---------------------------------------------------------------------------
Thank you for the opportunity to testify on water access barriers
encountered by the Ute Mountain Ute Tribe and by Tribal communities in
general. The Tribe urges the passage of S. 2385 and Senate Resolution
355.
The Chairman. Thank you very much.
Before we move on, if Senator Bennett is ready, I am going
to defer to Senator Bennett so that it makes sense that we do
States adjacent to each other. Then I will recognize Senator
Mullin for his witness and Senator Fisher for hers.
Without further ado, Senator Bennett.
STATEMENT OF HON. MICHAEL BENNET,
U.S. SENATOR FROM COLORADO
Senator Bennett. Thank you, Mr. Chairman. That is very kind
of you. I know the schedule is moving around here, and I am
very glad I had the opportunity to be here for Chairman Heart's
testimony. I am deeply, deeply grateful that he is here today.
He has served on the Ute Mountain Council since 1995, he
has been chairman for 14 years. His leadership has meant a lot
not just to the Ute Mountain Ute but to all of Colorado, and to
the west, in the work he has done on water and public lands. It
has been incredibly important.
He has done it all while he has been a cattle rancher at
the same time, so I just want to say, I have had the benefit of
his leadership and today the Country has the benefit of his
leadership.
Today only half of households on Native American
reservations have clean water or adequate sanitation. I know
the chairman knows these issues well. Tribal households are
nearly 20 times more likely than White households to lack
indoor plumbing. Chairman Heart has told me that it is
customary in the White Mesa Community to bring bottled water as
a greeting gift, because water contamination remains a profound
challenge.
Mr. Chair, the status quo is completely unacceptable to me,
and it should be unacceptable to every member of the United
States Senate. No family in this Country should have to raise
their children without clean water. No member of a tribe should
have to accept circumstances none of us would accept for our
own family. This hardship is particularly egregious, because it
is a direct consequence of the Federal Government's failure to
honor promises and treaties made to tribes across this land.
I think that if any of us faced the challenges that the
tribal leaders are facing today and that their membership is
facing today when it comes to clean water for their families
and for their kids, none of us would stay here in Washington,
D.C. We would all go home to make sure that that clean water
was being provided. That is why this leadership is here today.
A few years ago, we took big steps forward to secure clean
water for tribes in the Bipartisan Infrastructure Law,
including by providing the Indian Health Service with $3.5
billion for their sanitation deficiency list, and the Bureau of
Reclamation with $1 billion for rural water supply projects.
But the Ute Mountain Ute Tribe and other tribes have
struggled to access this funding, because their projects
require planning and other preconstruction work before being
considered shovel-ready by the Government.
The Tribal Access to Clean Water Act addresses these
challenges by authorizing critical technical assistance at the
Indian Health Service, Department of Agriculture, and the
Bureau of Reclamation for tribes to receive support for project
planning and design and take full advantage of Bipartisan Law
Funding. This bill would help the Ute Mountain Ute Tribe
replace 15 miles of 30-year old iron water lines which service
the growing Towaoc Community, which regularly break.
This bill is broadly supported across Native communities,
and I have brought letters of support from more than 20 members
of the Clean Water for All Coalition, including the Navajo
Nation, National Congress of American Indians, Vessel, and Dig
Deep. I would ask unanimous consent, Mr. Chairman, that we
enter these into the record.
The Chairman. Without objection, so ordered.
Senator Bennett. Mr. Chair, thank you. Just to close, when
the Federal Government established reservations for Native
American tribes, it promised a permanent and livable homeland
for those it had displaced from their ancestral lands. When
access to clean and safe water, a human right, is being denied,
this promise clearly has been betrayed, this promise clearly
has been denied.
With this bill, we have an opportunity to ensure more
Native communities have access to clean water, the same way
every Senator does and every Senator's family does. I welcome
the Committee's feedback on how to improve this legislation so
we can ensure Native Hawaiians and Alaska Natives and tribes
across the Country can access Bipartisan Infrastructure Law
funds to guarantee reliable access to clean water.
I hope that once you have had the opportunity to look at
this bill, it will earn a strong bipartisan vote from this
Committee. I thank you all for your leadership, and for giving
me the opportunity to be here today.
The Chairman. Thank you very much, Senator Bennett.
Senator Mullin?
STATEMENT OF HON. MARKWAYNE MULLIN,
U.S. SENATOR FROM OKLAHOMA
Senator Mullin. Thank you, Mr. Chairman. I do apologize
about coming in late, and I apologize for having to leave too,
because as Mr. Bennett referred to, our schedules are changing
a lot right now today. All is kind of up in the air.
I do want to say real quickly though, thank you for having
this hearing today on Senate Bill 2032, IHS Workforce. All of
us that live, like I do, in Indian Country or work for Indian
Country understands that is a huge need. I have mentioned it
multiple times. I grew up without insurance because we had
Indian Health Services, which is, Tahlequah Hospital for
Cherokee Nation was the health care place.
So the workforce need is real and it is in dire straits. So
I appreciate your hearing that.
Also, Senate Bill 2796, which is the Miami Illinois Land
Claims Settlement Act, which is what I have worked with my good
friend, I say really good friend, I mean that, because when we
first met, Chief, you had a full head of hair and you were
built like a warrior.
[Laughter.]
Senator Mullin. That is quite the opposite now, sir, but
you are working on it. I get that. But Chief Lankford and I go
way back. The only thing I have on him is, and you guys can't
really judge him on this, I do, but he went to school in
Missouri. But I understand where the Miami Tribe is, it is
right on the line. So it is close enough that we will accept
him.
Just to give you kind of a little background, Chief
Lankford, he has served the Miami Tribe since 2008, both as
second chief and chief, since 2013. Chief Lankford directs the
tribe's government affairs at the Federal, State and
intertribal levels. He is responsible for management and
oversight of the multi-million dollar budget for various
Federal grants and tribal entities.
Sadly, as I said before, he went to school in Missouri. But
I think we all claim he is from Oklahoma now. And you have
worked tirelessly up in Ottawa County for not just your tribe,
but for the people that live in and around your reservation. It
doesn't go without notice. It is a bragging point for me to see
how you interact with everybody that lives and interacts inside
your reservation.
As I had mentioned before, he is a very good friend of
mine. That is why I can joke and make fun of him, and I am sure
I will have that one coming back at some point.
Just to kind of give you a brief overlay of the Miami-
Illinois land claim settlement bill, this has no cost at all
related to it. It is actually, if you take a look at it, it
makes perfect sense, but you and I have been fighting this for
years. I offered this bill up in the House, I think the first
time was in 2014. And now we are here in the Senate. I really
hope we take a hard look at this and get this behind us. It is
sad when you see something that makes sense and really should
have no pushback, it takes years to make it right, especially
inside Indian Country.
So, Chairman, for allowing this to go this far so far, I
just want to tell you how much I truly, truly appreciate it. I
will speak for the chief, too, I know he really appreciates it,
too. Thank you for this time.
The Chairman. Thank you very much, Senator Mullin.
Chief Lankford, please proceed with your testimony.
STATEMENT OF HON. DOUGLAS LANKFORD, CHIEF, MIAMI TRIBE OF
OKLAHOMA
Mr. Lankford. Thank you. Aya akima eecipoonkwia weenswiaani
niila myaamia. I am Chief Doug Lankford of the Miami Tribe of
Oklahoma. I want to thank the Committee today for the
opportunity to testify in support of S. 2796.
This bill resolves the tribe's land claim in east central
Illinois by doing two things. First, it gives the United States
Court of Federal Claims the authority to decide whether the
United States took land protected by the 1805 Treaty of
Grouseland without paying the tribe. And second, it
extinguishes the tribe's claim to those lands which forever
eliminates the cloud on title for the current landowners.
For seven years, we have worked to make this bill law. In
that time, we have only encountered one question: why now? In
short, because time does not sit still. Our claims were not
resolved during the ICC. And due to past litigation, there is a
cloud on title for the landowners of 2.6 million acres in east
central Illinois.
The only way to clear cloud on title is for Congress to
extinguish our land claim. And all we are asking in exchange
for 2.6 million acres of ancestral homeland, is an opportunity
to be heard in court. We are not asking for an outcome; we are
asking for a chance to seek justice.
You might ask, how did this come about? Although the Miami
Tribe's seat of government is in northeastern Oklahoma, the
tribe was forcibly removed from its ancestral homelands in
Indiana, Illinois, and Ohio. In 1805, the Miami Tribe signed
the Treaty of Grouseland. By Article IV of that treaty, the
United States agreed that it would not take additional lands in
the watershed without permission and consent of the tribe.
Between 1805 and 1840, the Miamis entered into several
treaties, ceding most of its homeland. However, 2.6 million
acres located in the watershed, today east central Illinois,
were never ceded to the United States. Despite lacking title,
the United States sold the reserve land to non-Indian settlers,
giving rise to the Miami claim and creating a cloud on title on
these lands.
S. 2796 represents a commonsense, mutually beneficial
resolution to this problem. It is based on the legislation
introduced by the Illinois delegation in 2001, H.R. 791, and S.
533. That legislation was widely supported as a commonsense
approach, and so is our bill.
S. 2796, which enjoyed bipartisan support throughout its
life, would extinguish the tribe's land claim, resolving the
cloud on title, and grant the tribe one year to bring its case
before the United States Court of Federal Claims. To be clear,
the passage of this legislation extinguishes the Miami land
claim and the cloud on title is clear, regardless of the
tribe's outcome in litigating its claim before the court.
When the tribe asked Congressman Don Young to cosponsor the
bill years ago, he looked me in the eye and said, so the
landowners get resolved, the tribe still has to prove its case,
are you sure that is what you want? I said, yes, sir, it is. He
said, fair enough.
Congressman Young was a straight shooter and a tireless
advocate for Indian Country. He understood the common sense of
the bill right away.
The tribe has worked closely and diligently with the
Congressional leadership and local leaders from Illinois,
especially those in the affected treaty area. And the Illinois
Farm Bureau supports this legislation.
Finally, please note this bill is not a land claim
settlement bill or an appropriation bill. If the tribe prevails
in court, its judgment would be paid from the Federal judgment
fund. Also, this bill does not decide the merits or defenses
and does not declare any winners except the landowners in east
central Illinois.
Mihsi neewe. Thank you, Mr. Chairman and Committee members
for your time and the opportunity to testify in support of this
bill. I have to say a special thank you to Senator Mullin for
his many years of advocating for this bill. I also want to
thank Senator Durbin for the time and attention he has given to
this matter.
I am happy to answer any questions the Committee may have.
[The prepared statement of Mr. Lankford follows:]
Prepared Statement of Hon. Douglas Lankford, Chief, Miami Tribe of
Oklahoma
Aya akima eecipoonkwia weenswiaani niila myaamia. My name is Chief
Douglas Lankford of the Miami Tribe of Oklahoma. I want to thank the
Subcommittee for this opportunity to testify in support of S. 2796, a
Bill that would permanently resolve the Tribe's treaty-based land claim
to the Wabash River Watershed in east-central Illinois and permanently
resolve the cloud it creates on title held by landowners in east
central Illinois.
The Bill accomplishes this by doing two things:
1) First, it gives the United States Court of Federal Claims
(CFC) the authority to decide whether the United States took
lands protected by the 1805 Treaty of Grouse land (Reserved
Lands) without paying the Tribe; and
2) Second, it extinguishes the Tribe's claim to those lands,
which forever eliminates the cloud on title for landowners.
Background
The Miami Tribe of Oklahoma is a federally recognized Indian tribe.
Our ancestral homelands are located south of the Great Lakes, in what
are now the states of Indiana, Illinois, and Ohio. In 1846, the Tribe
was removed from its homelands to what is now the state of Kansas and,
in 1867 was again removed from Kansas to the Indian Territory, now the
State of Oklahoma. Our seat of government is located in Ottawa County
in Northeast Oklahoma.
In 1805, the Miami Tribe and its historical constituents Eel River
Band and Wea signed the Treaty of Grouseland with the United States.
\1\ By Article IV ofthat Treaty the United States recognized the three
Bands as ``joint owners of all the country on the Wabash and its
waters, above the Vincennes tract, and which has not been ceded to the
United States, by this or any former treaty'' \2\ and further agreed
that ``they [ the United States] do farther engage that they will not
purchase any part of the said country without the consent of each of
the said Tribes.'' \3\ Thereafter, the United States never negotiated
with the Tribe for the cession of the Reserved Land, nor paid the Tribe
for that land. Yet, over time, the United States transferred the
Reserved Lands to non-Indians.
---------------------------------------------------------------------------
\1\ Treaty of Grouseland, August 21, 1805, 7 Stat. 91. Appendix 2.
\2\ Id. at art. IV.
\3\ Id. at art. IV.
---------------------------------------------------------------------------
The Miami Tribe of Oklahoma is the sole contemporary tribal body
politic with a treaty title claim under Article IV of the Treaty of
Grouseland. As explained below, the Eel River Miami have been a part of
the federally recognized Miami Tribe of Oklahoma for over a century.
The Wea, now a part of the Peoria Tribe, \4\ ceded all their interests
in lands in Indiana, Ohio and Illinois, including their 1/3 interest in
the Reserved Land, through treaty in 1818. \5\
---------------------------------------------------------------------------
\4\ Peoria Tribe of Indians of Oklahoma v. United States, Docket
314-D, 22 Ind. Cl. Comm. 469,478 (1970) (citing Peoria Tribe of Indians
of Oki. v. United States, 4 Ind. Cl. Comm. 233 (1956), rev'd on other
grounds, 390 U.S. 468, 88 S. Ct. 1137, 20 L. Ed. 2d 39 (1968)).
\5\ Article 1, Treaty with the Wea, 7 October 2, 1818, Stat. 186.
---------------------------------------------------------------------------
The Miami Indian confederacy consisted of major group of people
located in the Native diaspora that existed just south of the central
Great Lakes when the French arrived in the territory in the 1620s. The
core bands of the Miami confederacy, that consistently intermarried and
forged a clear alliance as a tribe, were the Miami Proper, the Eel
River Miami, and the Wea.
Throughout the Eighteenth Century, the Miami Confederacy came into
increasing contact with fur traders at trading posts established
throughout the region. In 1801, the federal government sent a
territorial governor, William Henry Harrison, to administer the region
occupied by the Miami Confederacy. The encroachment of non-Indians on
Indian lands generated tensions and made clear the need for the United
States to negotiate Indian treaties and purchase land. From 1802 to
1804, Harrison negotiated a series of land cession treaties with
various tribes, \6\ including a series of 1804 treaties that cleared a
path for non-Indian occupation along the north bank of the Ohio all the
way to the Mississippi River. \7\ The Miami disputed many of the
agreements, arguing that they had rightful claim to large swaths of the
lands ceded by other tribes.
---------------------------------------------------------------------------
\6\ See Treaty with the Delawares, Etc., June 7, 1803, 7 Stat. 74;
Treaty with the Eel River, Etc, Aug. 7, 1803, 7 Stat. 77.
\7\ See Treaty with the Delawares, Aug. 18, 1804, 7 Stat. 81;
Treaty with the Piankeshaw, Aug. 27, 1804, 7 Stat. 83.
---------------------------------------------------------------------------
The mess caused by Harrison's approach and the resulting 1802-1804
treaties set the stage for the Treaty of Grouseland. On August 21,
1805, the three Miami bands ceded a small strip of land in present-day
southern Indiana. In exchange for this land cession, the Miami demanded
and received acknowledgement by the United States of the Tribe's
ownership of the vast regions of the Wabash River watershed, including
the Reserved Land in present-day Illinois. \8\ Because of Harrison's
past practice of attempting to negotiate cessions from more
``cooperative'' tribes regardless of their title to the land evidenced
in the 1802-1804 treaties, the Miami, Eel River, and Wea insisted on
the recognition of their joint ownership, each with an undivided
interest in the whole, \9\ such that the United States could ``not
purchase any part of the said country without the consent of each of
the said [three] tribes.'' \10\
---------------------------------------------------------------------------
\8\ Treaty of Grouseland, Aug. 21, 1805, 7 Stat. 91. Appendix 2.
\9\ Id. at art. IV.
\10\ Id. ( emphasis added).
---------------------------------------------------------------------------
Article IV's recognition of lands vested in the Miami, Eel River,
and Weas established treaty also known as recognized title to the lands
on the Wabash and its waters above the Vincennes, including the area in
Illinois that is the subject of the Bill \11\ ``Treaty'' or
``Recognized Title'' exists where Congress has by treaty or statute
conferred or acknowledged a tribal right to permanently occupy and use
land. Indians then have a right or title to that land, which has been
variously referred to in court decisions as ``treaty title,''
``reservation title,'' ``recognized title,'' and ``acknowledged
title.'' \12\ Tribal rights under treaty title, including usufructuary
rights, may only be abrogated or limited by clear Congressional
expression, \13\ and neither title nor use rights may be abrogated or
extinguished by implication. \14\ Following the Grouselnd Treaty, the
United States was thereafter required to secure lands reserved by
Article IV by Treaty containing a clear expression, and to provide
compensation to the Tribe as required by the Fifth Amendment of the
United States Constitution if that title was subsequently taken. \15\
The Tribe's treaty recognized title is in contrast to ``original Indian
title,'' which is based solely on aboriginal occupancy and use, \16\
and which can be taken by the United States without compensation
because it-unlike treaty recognized title--does not constitute
``property'' within the meaning of the Fifth Amendment. \17\
---------------------------------------------------------------------------
\11\ United States v. Kickapoo Tribe of Kansas, 174 Ct. CL 550, 554
(Ct. CL 1966) (holding that Article IV of the Treaty of Grouseland
``plainly recognizes title to and ownership of the designated lands'').
\12\ US. v. Kiowa, Comanche, and Apache Tribes of Indians, 479 F.2d
1369, 1374 (Ct. CL 1973).
\13\ Minnesota v. Mille Lacs Band of Chippewa, 526 U.S. 172, 202-
203 (1999).
\14\ United States v. Santa Fe Pacific Railroad, 314 U.S. 339,358
(1941).
\15\ United States v. Sioux Nation, 448 U.S. 371, 408 (1980)
(explaining that Congressional power over tribal lands ``does not
extend so far as to enable the Government to give the tribal lands to
others, or to appropriate them to its own purposes, without rendering,
or assuming an obligation to render, just compensation'') (internal
quotation marks omitted); Tee Hit-Ton v. United States, 348 U.S. 272,
277-78 (1955) (explaining that although Congress has no constitutional
obligation to compensate tribes for the taking of land held under
original Indian title, `` [ w ]here the Congress by treaty or other
agreement has declared that thereafter Indians were to hold the lands
permanently, compensation must be paid for subsequent taking'').
\16\ Tee Hit-Ton, 348 U.S. at 279.
\17\ Id. at 285 (stating that ``the taking by the United States of
unrecognized Indian title is not compensable under the Fifth
Amendment'').
---------------------------------------------------------------------------
Between 1805 and 1840, the Tribe's lands came under ever increasing
pressure from white settlers \18\ and the federal government, and the
Tribe ultimately ceded most of its lands reserved under the Treaty of
Grouseland through a series of subsequent treaties. See Figure 1. \19\
However, as depicted in Figure 1, \20\ the Tribe remained in possession
of treaty title to a significant remaining tract of the Article IV. The
United States never sought to acquire, and the Tribe never sold the
remaining Article IV Reserved Land. Several reasons likely explain
this, most notably that, during this period, the remaining lands were
wet and not suitable for the farmers who were encouraged to enter and
cultivate the land. Ironically, the lack of value attributed to the
land by non-Indians was precisely the value of the land to the Tribe,
because it was rich with plants, medicine, fish, and furbearing
animals.
---------------------------------------------------------------------------
\18\ The transformation in the non-Indian population between 1790
and 1840 in this region was stunning. In 1790 the population of the
United States was 3,929,000 and in 1800 it was 5,297,000. The earliest
population figures for the Northwest Territory were compiled in 1800,
reflecting 45,365 residents of Indiana, 5,641 in Indiana, and no
reported population in Illinois, it being considered fully Indian
country. Pottawatomie et al v. United States, Consolidated Dockets, 43
Ind. Cl. Comm. 687, 724 (1978). By 1840 the numbers were 686,866 in
Indiana, 1, 519,467 in Ohio, and 476,183 in Illinois. Returns of the
6th Census, United States Census Bureau (1841).
\19\ Treaty of September 30, 1809, 7 Stat. 13; Treaty of September
30, 1809, 7 Stat. 115; Treaty of October 6, 1818, 7 Stat. 189; Treaty
of October 23, 1826, 7 Stat. 300; Treaty of February 11, 1828, 7 Stat.
309; October 23, 1834, 7 Stat. 458,463; Treaty of November 6, 1838, 7
Stat. 569; Treaty of November 28, 1840, 7 Stat. 582. Many of these were
signed under coercion, and the last was signed in 1840 shortly before
the Tribe was forcibly removed by the United States to Kansas in 1846.
\20\ Additional depictions of the Article IV Reserved Land are
found at Appendix 3.
---------------------------------------------------------------------------
Despite its lack of title, in 1821 the United States, through the
Illinois Land Office, began selling parcels of land within the Tribe's
unceded territory to white settlers until settlers fully occupied the
area with United States land patents in hand. The United States did not
seek or obtain consent of the Miami before making these sales in
violation of Article IV of the Treaty of Grouseland, and the United
States has never compensated the Tribe for the taking.
Because it had not acquired title from the Tribe, the United States
did not transfer good title to the land it sold, and its actions give
rise for a claim for a treaty taking from the Tribe, which has created
a cloud on title to the Reserved Lands, affecting some 2.6 million
acres of east central Illinois. Through no fault of their own, and
despite having worked the land for generations, the landowners in the
Reserved Land have a cloud on their title.
Pressure on the Tribe's people and lands accelerated in the
following decades and, following the Treaty of 1840, \21\ and after
resisting removal for nearly 6 years, the Tribe was forcibly removed
from its homeland in 1846 to a reservation in Kansas, by river boat,
rail, and by foot. Just 20 years later, the Tribe was again forcibly
removed from Kansas to the Indian Territory, following the Treaty of
1867--where it purchased an undivided one-half interest in a
reservation set aside for the shared use of the Miami and the
Confederated Peoria Tribes. See Figure 2 .
---------------------------------------------------------------------------
\21\ Treaty with the Miami, Nov. 28, 1840 (7 Stat. 582).
---------------------------------------------------------------------------
Against all odds, despite two brutal removals in a 20-year span,
and the application of federal laws and policies intended to bring an
end to the Tribe, the Miami Tribe has survived and flourished.
The Need for Legislation
In 2000 the Tribe initiated a claim to title, \22\ making a matter
of public record the cloud that the Treaty itself created on title to
the Reserved Land. That litigation remains unresolved. In 2001, the
Illinois delegation introduced H.R. 791 (JohnsonIL) (Appendix 4) and S.
533 (Durbin-IL) (Appendix 5) that proposed a different approach. The
bills garnered strong bipartisan support from members of the Committee
on Resources. Specifically, Congressman Phelps stated:
---------------------------------------------------------------------------
\22\ Miami Tribe of Oklahoma v. Walden, et al., Case No. 4:00-cv-
041420-JPG (S.D. Ill.) (filed on June 2, 2000).
I am in support of Congressman Johnson's legislation, H.R. 791,
and I commend him for his leadership on this issue, which will
place this issue's accountability where it belongs, with the
Federal Government. This is not a question of who is right and
who is wrong, the Miami Tribe or the landowners. This is a
question of who is going to take responsibility. \23\
---------------------------------------------------------------------------
\23\ Legislative Hearing on HR. 521 and HR. 791 Before the
Committee on Resources, U.S. House of Representatives, 107th Cong. 7
(2002), available at: https://www.govinfo.gov/content/pkg/CHRG-
107hhrg79494/pdf/CHRG107hhrg79494.pdf (prepared statement of
Congressman David Phelps) (emphasis added).
Many others echoed Congressman Phelps' support, acknowledging that
the Tribe should be given the opportunity to right serious historic
wrongs, the responsibility for which, if proven, would fall on the
United States and not the landowners of Illinois. For example,
Congressman Timothy Johnson, the sponsor of H.R. 791, clarified that
the legislation ``enjoyed widespread support'' and expressed that,
while H.R. 791 did not render a judgment on the merits of the Tribe's
claim, ``there is no question there have certainly been examples
throughout history of wrongs committed on Native Americans.'' \24\
Similarly, Speaker Dennis Hastert referred to H.R. 791 as ``commonsense
legislation'' and stressed that judgement on the merits of the Tribe's
claim based on the Treaty of Grouseland ``can and should be made by
experts.'' \25\ Likewise, Congressman John Shimkus, whose district
later came to include the Reserved Lands, described H.R. 791 as
``straightforward and fair to both sides.'' \26\
---------------------------------------------------------------------------
\24\ Jd. at 3 (testimony of Congressman Timothy V. Johnson).
\25\ Id. at 79 (prepared statement of Congressman J. Dennis
Hastert, Speaker of the U.S. House of Representatives).
\26\ Id. at 5 (prepared statement of Congressman John Shimkus).
---------------------------------------------------------------------------
While that legislation did not become law, failing because of the
sheer breadth of what it proposed, the Tribe found the approach of the
legislation to be reasonable and sensible and it began work toward
fashioning legislation limited just to Miami's rights that (1) would
not repeat the kind of dispossession on the farmers of Illinois that
the Tribe endured throughout the 19th Century; and (2) would direct its
request for redress to the party responsible for the wrongful
conveyance of its Treaty protected land--the United States. Using H.R.
791 and S. 533 as its template, the Tribe introduced H.R. 183, 396 and
6063 in the 115th, 116th, and 117th Congresses, respectively.
The Tribe then spent time in the affected district and in
Springfield to discuss the proposal to determine whether those affected
by the dispute would support the resolution. And with that support,
presented the legislation to the Illinois delegation and it was
ultimately introduced by then Congressman Markwayne Mullin as H.R. 183.
The Bill ultimately became H.R. 396 (Mullin--OK), and H.R. 6063
(McCollum--MN), each iteration enjoyed broad bipartisan support, and
H.R. 396 and H.R. 6063 were heard by the House Indigenous Peoples'
Subcommittee but wee not passed because of circumstances beyond the
Tribe's control, including a government shutdown, COVID-19 shutdown,
and other unprecedented events. It is now time for this broadly
supported, common sense Bill to become law.
S. 2796 extinguishes the cloud on title created by the Tribe's land
claim in exchange for a one-year window for the Tribe to bring its
claim for a treaty taking before the CFC. Extinguishment of the claim
and the cloud on title does not depend on the Tribe's success in that
litigation. The claim is extinguished, and title cleared regardless of
the result of CFC litigation.
The Tribe has worked closely and diligently with the Congressional
Leadership from Illinois, with local leaders from Illinois, especially
those in the affected treaty area, and with the Illinois Farm Bureau
\27\ to develop a Bill that will resolve, once and for all, this claim
and its effect on title.
---------------------------------------------------------------------------
\27\ Appendix 1.
---------------------------------------------------------------------------
S. 2796 is uncommon Among Jurisdictional Bills Because of its Mutuality
While Congress has passed numerous jurisdictional bills over the
prior decades \28\ the Bill is unique because of its mutuality, which
provides Congressional relief to the current and historic landowners at
the same time.
---------------------------------------------------------------------------
\28\ A summary of jurisdictional legislation over the past 50 years
is attached at Appendix 6.
---------------------------------------------------------------------------
S. 2796 Does not Seek and Appropriation and its CBO Score is ``0''
Finally, it is important to note that S. 2796 is not a land claim
settlement bill, and it does not authorize any payment to the Tribe.
All it does is allow the Tribe the opportunity to present its case--it
gives the Tribe access to its day in court. The claim must be filed
exclusively against the United States and only for money damages. The
authority of the CFC to award monetary awards granted by the United
States Court of Claims exists in 31 U.S.C 1304 (a)(3).
The Tribe is responsible for proving its case. If it fails in this
effort, the statutory extinguishment of the cloud on title remains
effective. If the Tribe succeeds in its case, and damages are awarded
by the Court, liability for the claim is limited to the United States
and Federal law provides that a final judgment rendered by the United
States Court of Federal Claims against the United States is paid out of
``the Judgment Fund.'' \29\ The Judgment Fund is a permanent, unlimited
appropriation which is available to pay judicial and administratively
ordered monetary awards against the United States. \30\ In fact, the
Judgment Fund was specifically created by Congress in 1956 to alleviate
the need for individual congressional appropriations for each claim
against the United States. \31\
---------------------------------------------------------------------------
\29\ 31 U.S.C. 1304(a) provides in relevant part: ``Necessary
amounts are appropriated to pay final judgments, awards, compromise
settlements, and interests and costs specified in the judgment or
otherwise authorized by law when ( 1) payment is not otherwise provided
for; (2) payment is certified by the Secretary of the Treasury; and (3)
the judgment, award or settlement is payable under section 2414, 2517,
2672, or 2677 of Title 28.''
\30\ 31 C.F.R Part 256.1. See also The Judgment Fund: History,
Administration and Common Usage, Congressional Research Service, March
7, 2013, available at: https://fas.org/sgp/crs/misc/R42835.pdf
\31\ Id. at 2.
---------------------------------------------------------------------------
The Judgment Fund may only be accessed if certain statutory
conditions are met. \32\ The Treasury Department's Bureau of Fiscal
Services certifies payment from the Judgment Fund if the award or
settlement is final, it is monetary, the requirements of 31 U.S.C
1304(a)(3) are met, and payment may not be made from another source of
funds. The Judgment Fund ``requires no further Congressional action and
does not expire at the close of any fiscal year.'' \33\ Since 1956,
most judgments have been paid from the Judgment Fund. \34\
---------------------------------------------------------------------------
\32\ 31 C.F.R. 256.1.
\33\ Id. at 5.
\34\ Principles of General Appropriations Law, 3d. Edition, Volume
II, pp. 14-31.
---------------------------------------------------------------------------
So, if the Tribe is successful and gets a judgement, Congress does
not have to appropriate new money to pay it, \35\ and the CBO score for
this Bill is therefore ``0,'' and the payment of any award would
obviously not be an ``earmark.''
---------------------------------------------------------------------------
\35\ Principles of General Appropriations Law, 3d. Edition, Volume
II, pp. 14-29.
---------------------------------------------------------------------------
Conclusion
S. 2796 is simple and fair. It addresses both the current and
historic landowners' needs. The current landowners' title is cleared,
and the people of the Miami Tribe get their day in court.
Mihsi neewe. Thank you, Mr. Chairman, and to the Committee members
for their time and the opportunity to testify in support of the Bill
and a special thank you to Congressman Mullin for his leadership and
assistance on this Bill.
I am happy to answer any questions that the Committee may have.
Attachments *
---------------------------------------------------------------------------
* All other figures and Appendix documents have been retained in
the Committee files.
It is also important for the Committee to note that S. 2796 does
not set new precedent or plow new ground. Rather, it is based on the
language of past Acts of Congress that provided precisely the relief
proposed in S. 2796. Yes, the Congress has done this before. Four
statutes passed by Congress after the ICC's jurisdiction closed,
provide access for Tribes to assert treaty takings claims to the Court
of Federal Claims. Pub Law 97-385, 96 Stat. 1944 (Cherokee Nation), Pub
L. 96-405, 94 Stat. 1713 (Blackfeet and Gros Ventre Tribes); Pub. L 96-
404, 94 Stat. 1711 (Three Affiliated Tribes); and Pub L 96-251, 94
Stat. 372 (Cow Creek Band) (Attached as Appendices 1, 2, 3, and 4
respectively). Like S. 2796, these laws authorize the Court of Federal
Claims to ``hear, determine, and render judgment on'' the Tribes'
claims filed within a fixed window of time from the date of the Act.
Like S 2796, the Blackfeet, Cherokee, and Three Affiliated Tribes had a
window of one year from the date of the Act. Cow Creek was given a
five-year window. And like S. 2796, the Acts provide access
notwithstanding the ICC jurisdictional statute of limitations or other
defenses based on ``lapse of time, ``statutes of limitations, or
defense of res judicata or collateral estoppel, or any other provision
of law.''
In fact, the jurisdictional language found in the 2001 legislation
(HR. 791 and S. 533) mirrored the language of these Acts. S 2796 was,
in turn, based on the 2001 legislation and these Acts. So, the goal and
precise language of S. 2796 is based on language that Congress shaped
and passed several times. The only difference between S. 2796 and the
earlier Acts is that those Acts did not provide the mutual benefit that
S 2796 does. Those Acts granted access to the CFC without any waiver of
land claim or resolution of clouded title. Here, the Tribe agrees to
the statutory extinguishment of its land claim in exchange and that
clears title to land in Illinois.
______
Joint statement of the Miami Tribe of Oklahoma and Illinois Farm Bureau
on H.R. 5831 and S. 2796--October 4, 2023
Illinois Farm Bureau members and landowners in eastern Illinois may
remember efforts about two decades ago by the Miami Tribe to lay claim
to hundreds of thousands of acres of Illinois farmland under the 1805
Treaty of Grouseland. In recent years, the Miami's representatives
approached Illinois Farm Bureau to write federal legislation that would
resolve the tribe's two century-old claim in a way that forever holds
private landowners harmless.
Under H.R. 5831, sponsored by Oklahoma Republican Tom Cole, and S.
2796, sponsored by Oklahoma Republican Markwayne Mullin, Congress would
remove any cloud on title resulting from the Miami Tribe of Oklahoma's
claim to 2.6 million acres of eastern Illinois farmland. Under the
bill's provisions, the Tribe waives all claims to the land under any
possible legal theory against Illinois landowners but may argue its
claim against the United States before the United States Court of
Federal Claims. If the Tribe prevailed in its claim against the federal
government, the Court of Claims could provide only monetary damages.
''We are pleased to work with the Miami on this legislation. While
IFB takes no position on the Tribe's monetary claims, we support
passage of H.R. 5831 and S. 2796,'' said Illinois Farm Bureau President
Richard Guebert, Jr.
''The Tribe is focused on a solution to the Grouseland Treaty claim
that is fair to Illinois farmers. The IFB has been exceptional to work
with toward this end,'' said Miami of Oklahoma Chief Doug Lankford.
The Chairman. Thank you very much, Chief.
By the way, for any member, any staff, any testifier, I
take pronunciation very seriously, because I come from Hawaii,
and also because my last name is Schatz. So we try very hard to
get it right. So please help us with phonetics and whispering
in my ear. I do consider it a serious sign of respect when you
get it right. Accidental in this case, disrespect when you get
it wrong.
Senator Mullin. Did you just say Schatz?
The Chairman. Yes, Schatz, Schartz, whatever you want.
Senator Mullin. That is a lot easier. I can pronounce that.
[Laughter.]
The Chairman. Senator Fisher?
STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM NEBRASKA
Senator Fischer. Thank you, Chairman Schatz. It is great to
be back before this Committee again.
Today it is my honor to introduce the Chairwoman of the
Winnebago Tribe of Nebraska, Victoria Kitcheyan, to testify in
support of the Winnebago Land Transfer Act. I am grateful that
the bill passed the House of Representatives just this week. I
am hopeful that we can soon follow here in the Senate.
Chairwoman Kitcheyan has been serving in her current role
for the Winnebago Tribe since 2020. But for years before her
election as chairwoman, she dedicated herself to the welfare
and prosperity of her tribe.
Chairwoman Kitcheyan was first elected to the Winnebago
Tribal Council nearly a decade ago. She is the former
chairwoman of the National Indian Health Board, and she has
served on the Board's Medicare, Medicaid, and Health Reform
Policy Committee. She has also served on the Secretary's Tribal
Advisory Committee at the Department of Health and Human
Services.
Chairwoman Kitcheyan has demonstrate unwavering devotion to
her tribe and a comprehensive understanding of the issues they
face. There is no more knowledgeable or committed individual
who could testify here today.
My colleagues and I introduced the Winnebago Land Transfer
Act last year to respond to the trials this tribe has faced
over decades, trials imposed, sadly, by our own government. The
Winnebago Tribe endured forced removal from their homeland in
the mid-1800s. They settled in the Winnebago Indian Reservation
in Nebraska in 1865.
The Government promised the Winnebago Tribe that land in my
home State. They promised it forever. But in 1970, the U.S.
Army Corps of Engineers condemned approximately 1,600 acres of
the tribe's reservation land for a proposed recreation project,
a project that was never started.
What ensued was over half a century of legal battles
between the Winnebago Tribe and the U.S. Government, battles
that never brought this matter to a just resolution. Our bill
would restore the tribe's rightful land, transferring the
outstanding tracts of land back from the Army Corps. The Corps
no longer objects to returning the land, but this legislation
is needed to actually get it transferred to the tribe.
I am optimistic that we can continue raising bipartisan,
bicameral support for this bill, and that we can send it to the
President's desk. Thank you, Madam Chairwoman, for being here
today. It is an honor to have you. And thank you, Chairman
Schatz.
The Chairman. Senator Smith and Chairman Larsen, with your
indulgence, we are going to try to keep the member with the
relevant testifier together, just so we are not confusing
ourselves.
Chairwoman Kitcheyan, please proceed with your testimony.
STATEMENT OF HON. VICTORIA KITCHEYAN, CHAIRWOMAN, WINNEBAGO
TRIBE OF NEBRASKA
Ms. Kitcheyan. Good morning, Chairman Schatz, Vice Chair
Murkowski, and members of the Committee. My name is Victoria
Kitcheyan and I have the honor of serving as the chairwoman of
the Winnebago Tribe of Nebraska. Thank you for holding this
hearing on S. 3230, the Winnebago Land Transfer Act.
I would like to begin by expressing my heartfelt gratitude
toward Senators Fischer, Ricketts, Grassley, and Ernst for
their leadership in championing this bill. Senator Fischer, it
has been my honor to work with you, and the kind introduction
was so nice. The sheer determination that you have shown in
helping us get this legislation passed, and the elders at home
told us of a lady out east that was going to help us. The
leadership that you have demonstrated, our delegation believes
that you are that lady. So thank you for being an answer to
pray for the Winnebago people.
Honorable members of the Committee, you have my written
testimony. I want to use this time to tell you about the
historic and meaningful week our delegation has had. On Monday,
the Winnebago delegation was in the gallery when the House
passed our bill by a voice vote. It was an emotional experience
to hear the tribe's name in the introduction of that bill. And
it was a milestone and an historic moment in the tribe's work.
On Tuesday, we were able to visit the archives and look at
our 11 treaties, among them the 1865 Treaty that established
our reservation and that that would be our home forever.
Getting to have this humbling experience, to see the markings
of the warriors, Chief Little Priest, Chief Whirling Thunder,
and the bravery and the respect and the diplomacy that they
exhibited in establishing the government-to-government
relationship.
It was that bravery and that respect that carries over to
our tribal council, and our responsibility to uphold those
treaties. That exercise was significant in creating that space
for change. The ancestors were with us.
That afternoon, we went to the Smithsonian's Cultural
Resource Center, and were able to view our relatives' items
that they left behind. It was by no coincidence that our
delegations represented families in the clans that were there
that day. Being in the presence and getting to look at the
beauty and take in the spirit of those items was powerful.
It was the designs and the materials used in those
materials that are still in our families and our community
today and are celebrated as a remembrance of who were are. It
was this intrinsic tie to the land in our everyday life and our
culture, and it also demonstrates the depth of our relationship
with Man'una's creation. The ancestors are with us.
Yesterday, we had an amazing visit with Senator Fischer and
many other of the Committee staff. We were able to discuss this
bill and talk about how important this was to the tribe. And
here we are today amongst this distinguished body and
recognizing the work that has been brought before you and what
strong advocates you are for Indian Country.
I share these moments because I want you to know how
meaningful this has been to us and the significance of
returning this land. Our Winnebago delegation is here, carrying
the work forward of others, most notably the late Louis LaRose
[phrase in Native tongue], who was the chairman in the 1970s.
He served over a span of 50 years. He was the chairman when
this land was taken. It was my honor to get to sit at the table
with him. Sadly, he passed the day after the Senate introduced
our bill.
So we are here to continue Louis' work. We are here to
finish this on behalf of the people. Once this land is
restored, we plan to keep this land in conservation. Our
wildlife and parks department has the capacity and resources to
manage this land for recreation and conservation activities.
The tribe has no intention of making any changes to those
conservation efforts by the Army Corps or the Iowa DNR.
In conclusion, I want to share some teachings of the
Winnebago people. The elders tell us it is really simple. They
say, love one another, take care of one another, be good to one
another. So I want to ask this Committee to be good to the
Winnebago people. Our people say, [phrase in Native tongue],
stand arm in arm. I say [phrase in Native tongue] to this
Committee and ask you to stand arm in arm with the Winnebago
people and pass S. 3230.
[Phrase in Native tongue.]
[The prepared statement of Ms. Kitcheyan follows:]
Prepared Statement of Hon. Victoria Kitcheyan, Chairwoman, Winnebago
Tribe of Nebraska
Introduction
Good morning Chairman Schatz, Vice Chairman Murkowski, and Members
of the Senate Committee on Indian Affairs. My name is Victoria
Kitcheyan, and I have the honor of serving as the Chairwoman of the
Winnebago Tribe of Nebraska (``Tribe'' or ``Winnebago''). Thank you for
holding this hearing on S. 3230, the Winnebago Land Transfer Act, which
would restore a portion of our homelands that were illegally taken from
the Tribe decades ago.
I. Background on the Winnebago Tribe
In the mid-1800s, the Winnebago people were forcibly removed by the
United States Army from Wisconsin to Minnesota, Iowa, South Dakota, and
finally in 1865 to the Winnebago Indian Reservation in Nebraska and
Iowa. Our treaty promised that land was ``set apart for the occupation
and future home of the Winnebago Indians, forever..'' Today, the
Winnebago people make our home on a reservation along the hills and
banks of the Missouri River in Northeastern Nebraska and Northwestern
Iowa.
II. Need for Legislation
Over 150 years after my ancestors made their marks on our 1865
Treaty, I am here fighting to ensure that the federal government lives
up to the obligations it made in that agreement. I am carrying forward
the work of Winnebago leaders that came before me, including the late
Louis LaRose, who served on the Winnebago Tribal Council intermittently
for the past 50 years.
Louis was elected to the Tribal Council at the age of 26, then
became chairman at just 28 years old. It was during his time as
chairman in the early 1970s when the U.S. Army Corps of Engineers
(``Army Corps'') improperly and illegally condemned approximately 1,600
acres of our reservation in Iowa and Nebraska for a proposed recreation
project, a project that never came to fruition.
The Army Corps filed two condemnation proceedings against the
Tribe, one in Iowa and one in Nebraska. As trustee, the U.S. should
have defended the Tribe as part of its trust responsibility for our
land. However, because the Army Corps itself is a federal entity, the
U.S. could not defend the Tribe's interests. Therefore, the Tribe had
to defend its own interests in multiple lawsuits, in multiple states,
in multiple courts, and on extremely short notice with limited
resources. Louie would share a story about the Tribe having only one
day to get a lawyer to defend our lands.
The Tribe initially lost in both the U.S. District Court of
Nebraska and U.S. District Court for the Northern District of Iowa,
Western Division. However, when the Tribe appealed to the federal Court
of Appeals, we prevailed in our lawsuit in Nebraska. The Appeals Court
found that the Army Corps did not have Congressional authorization to
condemn our reservation lands.
We also appealed the Iowa case to the federal Court of Appeals.
After years of litigation and appeals, the Eighth Circuit Court of
Appeals found that the condemnation was illegal, but the Court did not
have the authority to order the Army Corps to return the land to the
Tribe because of res judicata, the matter was already decided.
The Tribe has exhausted its remedies in the court system, and we've
been unable to obtain redress from the Army Corps, nor the Department
of the Interior. So, the Winnebago Tribe is here today to urge Congress
to return those lands to the Tribe by enacting the Winnebago Land
Transfer Act.
III. BILL OVERVIEW
The Winnebago Land Transfer Act is a testament to the Winnebago
peoples' persistence, determination, and commitment to being a good
neighbor. Our approach led to the introduction of bicameral, bipartisan
legislation that is supported by our entire Congressional delegation,
the Department of the Interior, as well as many stakeholders.
The bill would transfer approximately 1,600 acres of the Tribe's
former reservation lands from the Army Corps back to the Department of
the Interior to be held in trust for the Tribe. The land being returned
to the Tribe is mostly woodland and marsh along the Iowa side of the
Missouri River that is primarily used for recreational hunting and
fishing. For the Winnebago people, we also have a strong cultural
connection to this land as it contains many of our traditional
medicines.
The lands that are the subject of the bill are currently maintained
by the Iowa Department of Natural Resources (DNR) who supports this
legislation. In fact, the latest renewal agreement of the license
between the Iowa DNR and the Army Corps includes a provision that
anticipates the return of the land to the Winnebago Tribe.
Once restored to the Tribe, the Winnebago Wildlife and Parks
Department (``Department'') would be responsible for managing this
land. Our Department has the experience and resources to regulate
recreational and conservation activities and ensure laws and
regulations are enforced, as well as a strong commitment to improve the
overall management of these lands. It currently oversees hunting and
fishing on 10,000 acres of woodland on the Nebraska side of the
Missouri River, where hunters from all over the country come to hunt.
The Tribe has no intention of making any major changes to the
conservation measures in place now by the Army Corps and the Iowa DNR.
Further, those hunting and fishing on the land will only have to pay a
fee to the Tribe, not both the Tribe and the Iowa DNR. Our Department's
website will provide information on fees and regulations and offers an
online process to obtain hunting and fishing licenses.
IV. Support for Legislation
The Winnebago people have waited for more than 50 years to have the
lands that were wrongfully seized by the Army Corps returned to the
Tribe. The Tribe is very thankful to have so many champions of that
effort here in Congress. We greatly appreciate Senator Fischer, Senator
Grassley, Senator Ricketts, and Senator Ernst introducing and
championing the Winnebago Land Transfer Act in the Senate.
Earlier this week, the House of Representatives approved the
Winnebago Land Transfer Act. This historic moment would not have been
possible without the strong support of Representative Randy Feenstra,
our congressman on the Iowa side of our reservation where these lands
are located; Representative Sharice Davids, a member of our sister
tribe, the Ho-Chunk Nation; Representative Mike Flood; Representative
Zach Nunn; Representative Adrian Smith; Representative Mariannette
Miller-Meeks; Representative Don Bacon; and Representative Ashley
Hinson.
Conclusion
Our late Chairman Louis LaRose fought tirelessly to see these lands
returned to the Winnebago people throughout his distinguished career, a
career that included many significant achievements, initiatives, and
movements on behalf of our people, and on behalf of Indian Country.
Sadly, he passed away the day after the Winnebago Land Transfer Act was
introduced in the Senate. Louis started the work which led to the
development of the bill, and now the Tribal Council is determined to
help send this legislation to the President's desk in his name and
honor.
The Winnebago Tribe urges the Committee and full Senate to approve
the Winnebago Land Transfer Act. Through the enactment of this
legislation, the United States would correct an injustice and ensure
that our Tribe's homelands are protected, respected, and preserved.
Thank you again for the opportunity to testify on S. 3230, the
Winnebago Land Transfer Act.
The Chairman. Thank you very much, Chairwoman.
Now the Honorable Robert Larsen, President of the Lower
Sioux Indian Community in Minnesota.
STATEMENT OF HON. ROBERT L. LARSEN, PRESIDENT, LOWER SIOUX
INDIAN COMMUNITY
Mr. Larsen. [Greeting in Native tongue.] Hello, my
relatives. [Phrase in Native tongue.] In English, Robert
Larsen, or Deuce. [Phrase in Native tongue.] I introduce myself
with my Dakota name and my English name. I am the President at
Lower Sioux; I have that great honor to serve them.
And I just want to say thank you to Chair Schatz, Vice
Chair Murkowski, and the Committee for the opportunity to
present testimony in support of Senate Bill 2868, to Accept the
Request to Revoke the Charter of the Incorporation of the Lower
Sioux Indian Community in the State of Minnesota.
The charter was never requested by the community, and the
community has never used it. It is a paternalistic document
that limits the community's ability to manage its own economic
affairs without Department of Interior approval. The charter is
laced with restrictions from a long-ago era that do not work
today, and it serves no function for the community.
The community voted to adopt and organize under its
constitution and bylaws, and it has always operated its
economic activities as a government, rather than a Federal
corporation.
The community has full constitutional authority to manage
the business affairs of the community and to adopt tribal law
governing the organization and operation of corporate entities,
and it has done so. It can further organize corporate entities
under community law which would be better equipped to fulfill
the goals of the community to keep up with the changes in the
marketplace and at the pace of business.
Also, the community has passed its own limited liability
company ordinance, which allows the community and individuals
to organize as tribal companies and eliminates Federal
involvement in corporate affairs.
Senate Bill 2868 is based on a well-worn path as many IRA
organized tribes that were issued charters have abandoned them
by the same legislative method, including the Minnesota
Chippewa Tribe, the Perry Island Indian Community, Stockbridge
Muncie Community of Mohican Indians, and the Miami Tribe of
Oklahoma. The community believes that abandoning the Federal
corporate charter is an effective and important statement that
it is self-governing, sovereign, and is capable of operating
economic activities of the community without the Department of
Interior's assistance.
I appreciate your support for Senate Bill 2868, which
revokes the community's charter. [Phrase in Native tongue], and
thank you.
[The prepared statement of Mr. Larsen follows:]
Prepared Statement of Hon. Robert L. Larsen, President, Lower Sioux
Indian Community
Thank you, Chairman Schatz, Vice Chair Murkowski, members of the
Committee--My name is Robert ``Deuce'' Larsen, and I have the privilege
of serving as President of the Lower Sioux Indian Community in the
State of Minnesota.
I want to thank the Committee for the opportunity to present
testimony in support of Senate Bill 2868--to accept the request to
revoke the charter of incorporation of the Lower Sioux Indian Community
in the State of Minnesota.
The Lower Sioux Indian Community in the State of Minnesota (the
Community) has requested assistance in revoking its antiquated federal
Corporate Charter pursuant to the provisions of the Indian
Reorganization Act of June 18, 1934 (IRA). These charters were issued
over 80 years ago to tribes organized under the IRA. Nearly uniformly,
tribes have not operated under these charters because they are
cumbersome and ineffective for dealing with Tribal resources, and many
tribes have seen their charters revoked by simple legislative action by
Congress as required by the charters themselves.
One of the purported purposes of the IRA was to provide a means by
which tribes could function in mainstream business. Section 17 of the
IRA established federal corporate charters as a means for tribes to
facilitate business transactions. A Section 17 corporation provides the
framework by which a tribe can segregate tribal business assets and
liabilities from the assets and liability of tribal governmental
assets.
A vast majority of federal charters went unused or were quickly
abandoned due to the charters' restrictive requirements for Secretary
of the Interior approval, unrealistic temporal and financial
limitations, and failures to update the charters' provisions. Instead,
tribes often chose to operate their enterprises through their authority
as sovereign government entities--rather than engage their federal
corporate charters.
A number of tribes of have requested and gained Congressional
repeal of their individual federal corporate charters. By their own
terms, most federal corporate charters restrict the revocation or
surrender of the charter by requiring ``an act of Congress.'' \1\
---------------------------------------------------------------------------
\1\T3ASee U.S. Dep't of Interior, Corporate Charter of the
Lower Sioux Indian Community in Minnesota (July 17, 1937) at 10;
Dep't of Interior, Corporate Charter of the Minnesota Chippewa Tribe of
the Consolidated Chippewa Agency (Nov.13, 1937) at 10; U.S. Dep't of
Interior, Corporate Charter of the Stockbridge Munsee Community of
Wisconsin (May 21, 1938) at 10, U.S. Dep't of Interior, Corporate
Charter of the Miami Tribe of Oklahoma (June 1, 1940) at 8.
---------------------------------------------------------------------------
In 1996, Congress accepted the Minnesota Chippewa Tribe's surrender
of their ``Corporate Charter of the Minnesota Chippewa of the
Consolidated Chippewa Agency.'' \2\
---------------------------------------------------------------------------
\2\ Technical Corrections to Laws Relating to Native Americans,
Pub. L. No. 104-109, 110 Stat. 763 (1996).
---------------------------------------------------------------------------
Later that same year, the Prairie Island Indian Community
(``Prairie Island'') made a similar request of Congress. \3\
Considering a bill sponsored by Congressman Gil Gutkneckt (R-MN), the
House Committee on Resources (``Committee'') noted that Prairie Island
considered the federal Corporate Charter to be ``outdated, ineffective
and cumbersome,'' and the tribe did not engage the corporate authority,
operating its businesses enterprises pursuant to its tribal
constitutional authority instead. \4\ The Committee further noted that
``revocation of charters of incorporation issued to tribes is a common
practice by Congress.'' \5\ The House passed the bill and, in the
Senate, Senator John McCain (R-AZ) spoke in favor of revoking the
Prairie Island Corporate Charter due to its ineffectiveness, pointing
out that a number of the Prairie Island charter's provisions were
``particularly paternalistic and inappropriate for effective management
of tribal resources.'' \6\ On October 9, 1996, P.L. 104-261 officially
revoked Prairie Island's federal Corporate Charter. \7\
---------------------------------------------------------------------------
\3\ See H.R. REP. No. 104-584 (1996).
\4\ 142 CONG. REC. H5388-04 (May 22, 1996).
\5\ Id. (referring to Public Law 104-109, wherein Congress approved
the Minnesota Chippewa Tribe's request for revocation).
\6\ 142 CONG. REC. S11-53-01 (Sept. 19, 1996).
\7\ Pub. L. No. 104-261, 110 Stat. 3176 (1996).
---------------------------------------------------------------------------
In 2000, the Stockbridge Munsee Community of Mohican Indians
(``Stockbridge Munsee Community'') also pursued Congressional action in
order to repeal the tribe's federal Corporate Charter. \8\ The
Stockbridge Munsee Community requested that Congress revoke its federal
Corporate Charter because it was ``outdated'' and ``never used.'' \9\
In the House, Mr. James Hanson (R-Utah) pointed to the charter's
``unrealistic'' limitations on the tribe's corporate powers and urged
that the Corporate Charter be revoked in order to facilitate the
tribe's economic development. On June 20, 2000, Congress passed P.L.
106-216, accepting the Stockbridge Munsee Community's surrender of its
charter of incorporation. \10\
---------------------------------------------------------------------------
\8\ See U.S. Dep't of Interior, Corporate Charter of the
Stockbridge Munsee Community of Wisconsin (May 21, 1938).
\9\ 145 CONG. REC. H12131-01 (Nov. 17, 1999).
\10\ Pub. L. No. 106-216, 114 Stat. 343 (2000).
---------------------------------------------------------------------------
In 2014, the Miami Tribe of Oklahoma requested Congressional
revocation of their Corporate Charter. \11\ The Miami Tribe noted that
their charter was ``archaic,'' ``unnecessary,'' and ``a relic of a
bygone, more paternalistic time in federal Indian policy.'' \12\
Representative Markwayne Mullin (R-OK), speaking in support of the
Tribe's request at the House of Representatives, noted that the Miami
Tribe created ``not just jobs at a casino, but manufacturing jobs, jobs
that help our national defense. Yet they are hindered constantly by the
effect that they can't simply do the work without asking Congress'
permission'' \13\ Congress passed P.L. 114-28 on July 6, 2015,
accepting surrender of and revoking the Miami Tribe's charter. \14\
---------------------------------------------------------------------------
\11\ See U.S. Dep't of Interior, Corporate Charter of the Miami
Tribe of Oklahoma (June 1, 1940).
\12\ Testimony of Douglas G. Lankford before the House Natural
Resources Committee Subcommittee on Indian and Alaska Native Affairs
(March 27, 2014).
\13\ 161 CONG. REC. H3588 (June 1, 2015).
\14\ Pub. L. No. 114-28, 129 Stat. 420 (2015).
---------------------------------------------------------------------------
The Community's Corporate Charter is comparable to the charters
issued to the Minnesota Chippewa Tribe, Prairie Island Indian
Community, the Stockbridge Munsee Community, and the Miami Tribe of
Oklahoma. The charter's language provides similar corporate powers to
the Community. For example, the Community's charter provides that the
corporation may borrow money, but not in excess of $1000 without
express approval by the Secretary of the Interior. \15\ The Community's
charter limits the corporate entity to the assignment of future
corporate income to a period of three years, limits lease terms to 10
years, and prohibits any sale of land held by the corporation. Also,
the corporation's powers are heavily limited by Secretarial approval
requirements.
---------------------------------------------------------------------------
\15\ Id. at 5(d). Comparatively, the Minnesota Chippewa Tribe and
Stockbridge Munsee charters each authorized independent borrowing up to
$5,000, and the Prairie Island charter authorized up to $1000. The
Miami Tribe of Oklahoma's Charter authorized borrowing up to $150.
---------------------------------------------------------------------------
The Community has full constitutional authority to manage the
business affairs of the Community and to adopt tribal law governing the
organization and operation of corporate entities, and it has done so.
It can further organize corporate entities under Community law, which
would be better equipped to fulfill the goals of the Community and to
keep up with changes in the marketplace and at the pace of business.
It is for these reasons that I ask for support of Senate Bill 2868.
Pidamaya-do.
The Chairman. Thank you very much. Now we will introduce
our final testifier, Ms. Angie Wilson, the Executive Director
of the Reno Sparks Indian Colony Tribal Health Center. Please
proceed with your testimony online.
STATEMENT OF ANGIE WILSON, EXECUTIVE DIRECTOR, RENO SPARKS
INDIAN COLONY TRIBAL HEALTH CENTER
Ms. Wilson. [Greeting in Native tongue]. Greetings and good
morning to everyone.
Before I begin, I would like to acknowledge all of the
tribal leaders in the room and their powerful testimony on
behalf of your tribal communities. It is beautiful to hear.
Chairman Schatz, Vice Chair Murkowski and members of the
Senate Committee on Indian Affairs, I want to thank you for
inviting me to speak with you all today. My name is Angie
Wilson, and I serve as the Executive Director for the Reno
Sparks Tribal Health Center for the Reno Sparks Indian Colony
here in northern Nevada. I am a citizen of the Pit River Tribe
of Northern California and a Klamath/Modoc descendant of the
Klamath Tribe of Southern Oregon. It is an honor to be here
today.
First, I would like to express my sincere gratitude for the
opportunity to testify before the Senate Committee on Indian
Affairs in support of the bipartisan bill to expand the Indian
Health Service Loan Repayment Program to part-time healthcare
professionals. I would like to thank our United States Senator,
Catherine Cortez Masto, and United States Senator Markwayne
Mullin from Oklahoma on their collaboration to propose this
bipartisan bill. Sepk'eec'a, thank you for your dedication to
this effort.
It should be no surprise to any one of us here today, in
our respective positions as United States Senators, health
policy experts, or tribal health advocates, that health care
for our Indian people lags that of other Americans, despite the
legal obligation of the United States to provide health care to
American Indians and Alaska Natives as a trust responsibility.
As evidenced in well documented health disparities, the health
outcomes for our Indian people should be the report card for
how well the trust responsibility is being upheld.
In addition to decades-long underfunding, there are
additional barriers that further compound inadequate access to
care for our Indian people. One key factor in many of our
Indian health and tribal and urban Indian programs is the
shortage of health care personnel.
This is especially true for our rural and frontier based
reservations. As detailed in the effort on this bipartisan
bill, the Indian Health Service holds a provider vacancy at
over 25 percent. While that number may seem staggering to some,
the reality is that the vacancy rates are much higher in our
tribal clinics and especially severe in our rural and frontier
based tribal communities.
I work closely with our Nevada Tribal Health Directors.
Here we have 17 counties, 3 being rural and 11 of those are
frontier, with a vacancy rate as high as 50 percent in some of
our tribal clinics.
The impacts of such vacancies results in our most
vulnerable clinics utilizing locum tenens at such a high cost,
it almost feels impossible for us to get ahead of this
situation. In addition, the ability of our tribes to engage
with the Indian Health Services to buy back a provider is left
unresolved as the vacancy rates with the IHS leave little to no
fruitful opportunity to fulfill the staffing needs at the local
tribal level.
Our Indian people continue to die at higher rates than
other Americans in many categories of preventable illness,
including chronic liver disease and cirrhosis, diabetes and
chronic lower respiratory diseases. This month, my extended
family has lost the sixth person to cirrhosis, all of which
were under 34 years old, while an additional young family
member is struggling to endure dialysis while waiting for a
kidney transplant.
It is important that we look at this issue through the eyes
of our patients, including but not limited to our members with
chronic health conditions, elders with geriatric health care
needs, and the overwhelming need for behavioral health services
within our tribal communities. Having a regular and reliable
relationship with a health care provider is strongly associated
with more use of preventive care, greater satisfaction with
care, lower health care costs and better health outcomes. This
is especially true for our elder populations and reduced risk
of preventable hospitalizations.
The Reno Sparks Tribal Health Center currently employs
recipients of the IHS Loan Repayment Program. This bill would
help to support our efforts to extend loan repayment options to
part-time employees, allowing improved opportunities for
staffing to better meet the needs in our tribal health care
delivery systems.
Currently, this allowance would improve our opportunities
to offer part-time employment for expanded access to health
care providers such as psychiatric nurse practitioners and
practitioners in women's health, pediatrics, psychologists and
physical therapists. This allows our clinics to better utilize
our space to schedule various providers throughout the week
while also extending services through our mobile medical,
dental, and behavioral health units to the extended tribal
community.
On behalf of the Reno Sparks Indian Colony and our Tribal
Health Center, we are in full support of this important bill,
and further advocate that loan repayment funds should be exempt
from Federal income and employment taxes, in alignment with
loan repayment programs of the National Health Services Corps.
In closing, I just want to express my gratitude to the
entire Senate Committee for your continued work in Indian
Country and urge you, the importance of upholding the Federal
trust responsibility to our Indian people, because their lives
depend on it. [Phrase in Native tongue.] Thank you for having
me.
[The prepared statement of Ms. Wilson follows:]
Prepared Statement of Angie Wilson, Executive Director, Reno Sparks
Indian Colony Tribal Health Center
Chairman Schatz, Vice Chair Murkowski, and Members of the Senate
Committee on Indian Affairs, thank you for inviting me to speak with
you all today. My name is Angie Wilson and I serve as the Executive
Director of the Reno Sparks Tribal Health Center for the Reno Sparks
Indian Colony. I am a citizen of the Pit River Tribe of Northern
California and a Klamath/Modoc descendant of the Klamath Tribes of
Southern Oregon.
First, I would like to express my sincere gratitude for the
opportunity to testify before the Senate Committee on Indian Affairs in
support of the bipartisan bill to expand the Indian Health Service Loan
Repayment Program to part-time healthcare professionals. I am proud of
t he work of our U.S. Senator Catherine Cortez-Masto (NV) and her
ongoing dedication to assisting our tribes with key initiatives. In
addition, to U.S. Senator Markwayne Mullins (OK) and fellow tribal
member of the Cherokee Nation. The collaboration to propose this
bipartisan bill is an outstanding example of leadership in action.
Sepk'eec'a (thank you) for your dedication to this effort.
It should be no surprise to any one of us here today, in our
respective positions as United States Senators, Health Policy Experts,
or Tribal Health Advocates, that health care for our Indian people lags
that of other Americans, despite the legal obligation of the United
States to provide health care to American Indians and Alaskan Natives
as a trust responsibility. As evidenced in well documented health
disparities, the health outcomes for our Indian people should be the
report card for how well the Trust Responsibility is being upheld.
In addition to decades-long underfunding, t here are additional
barriers that further compound inadequate access to care for our Indian
people. One key factor in many of our Indian Health and Tribal Health
Clinics, is the shortage of healthcare personnel. This is especially
true for our rural and frontier based Tribal reservations. As detailed
in the effort on this bipartisan bill, the IHS holds a provider vacancy
rate at over 25 percent. While that number may seem staggering, the
reality is that the vacancy rates are much higher in our tribal clinics
and especially severe in our rural and frontier based tribal
communities. I work closely with our Nevada Tribal Health Directors,
with 17 counties in our state, 3 being rural and 11 frontier, the
vacancy rate is as high as 50 percent in some tribal clinics.
The impact of such vacancies result in our most vulnerable tribal
clinics utilizing locum tenens at such a high cost, it feels impossible
for tribal clinics to get ahead of this situation. In addition, the
ability of our tribes to engage with the Indian Health Services to buy
back a provider is left unresolved as the vacancy rates with the IHS,
leave little to no fruitful opportunity to fulfill the staffing needs
at the local tribal level.
Our Indian people continue to die at higher rates than other
Americans in many categories of preventable illness, including chronic
liver disease and cirrhosis, diabetes and chronic lower respiratory
diseases. This month, my extended family has lost the sixth person to
cirrhosis, all of which were under 34 years old, while an additional
young family member is struggling to endure dialysis while waiting for
a kidney transplant. It is imperative that we look at this issue
through the eyes of our patients including, but not limited to, our
members with chronic health conditions, elders with geriatric
healthcare needs, and the overwhelming need for behavioral health
services within our tribal communities. Having a regular and reliable
relationship with a healthcare provider is strongly associated with
more use of preventive care, greater satisfaction with care, lower
healthcare costs and better health outcomes. This is especially true
for our elder populations and reduced risk of preventable
hospitalizations.
The Reno Sparks Tribal Health Center currently employs recipients
of the IHS Loan Repayment Program. This bill would support our efforts
to extend loan repayment options to part-time employees, allowing
improved opportunities for staffing to better meet the needs in our
tribal healthcare delivery systems. Currently, this allowance would
improve our opportunities to offer part-time employment for expanded
access to healthcare providers such as Psychiatric Nurse Practitioners,
and practitioners in Women's Health, Pediatrics, Psychologists and
Physical Therapist etc. . . This allows our clinics to better utilize
limited space to schedule various providers throughout the week while
also extending services through our mobile medical, dental and
behavioral health units to the extended tribal community.
As such, on behalf of the Reno Sparks Indian Colony Tribal Health
Center, we are in full support of this important bill and further
advocate loan repayment funds to be exempt from federal income and
employment taxes, in alignment with the loan repayment programs of the
National Health Services Corps.
The Chairman. Thank you very much.
Senator Cortez Masto?
Senator Cortez Masto. Thank you. I want to thank the
Chairman and Ranking Member for holding this hearing on several
important pieces of legislation that have a positive impact on
Indian Country.
I also thank them for pulling up the IHS Workforce Parity
Act. It is a piece of legislation that Senator Mullin and I
have worked on together, after talking with our tribes, and
understanding that too many tribal members can't access the
health care they need because of a dire doctor shortage in
Indian Country. So we need to make it easier, as we have heard
today from our incredible panelists.
That is why this legislation would allow health care
providers working part-time to access IHS scholarship and loan
repayment programs. You have heard why this is so important.
Let me start with Ms. Wilson. Angie, thank you again for
participating virtually here. Thank you for explaining really
the workforce shortages in Indian Country, what you are
actually seeing on the ground and the impact it is having to so
many members of our tribal community.
Can you also talk about particularly in our rural health
care areas, quite often because there is a limited amount of
health care workers, when we do get them in Indian Country or
rural areas, they are actually wearing different hats. They
don't just wear one hat. There are different things they are
doing, because that flexibility is important. Whether it is
full-time or part-time, the clinical hour requirements really
increase staff time for our capacity.
Why is this bill that important? Angie, let me start with
you. Please address the flexibility piece of it and the many
hats that somebody, even working part-time, will have that
benefits Indian Country.
Ms. Wilson. I think that if you are, especially in our
State, we are a primarily rural State. Access to health care
providers is somewhat challenging for us. I would say
especially when we look at things like behavioral health, there
have been oftentimes where we get one psychiatrist, that one
tribe may find that all of us see if we can do a contract with
that person, even for just one day or just to meet the need in
our tribal clinics.
So it is somewhat in a dire situation where people wear
multiple hats, it diminishes the amount of time that we really
get with our patients. When we look at the health disparities
of American Indians and Alaska Natives, there is really no time
for that. We need help on the ground. We have infant mortality
rates that are off the charts compared to non-Hispanic Whites,
mothers who are almost three times less likely to receive late
or no prenatal care. We don't have access to some of the urgent
care needs that we have in our community.
So by being able to pass a bill that would allow the
flexibility of onboarding part-timers, and giving them,
extending them benefits for loan repayment, it really helps us
in our clinics to be able to strategize access to care in a
more convenient way for our patients and be able to allow us to
schedule them appropriately to be able to utilize their skills
for what we need them there for.
Senator Cortez Masto. Thank you.
Let me jump to Assistant Secretary Ms. Egorin, is that
right?
Ms. Egorin. It is Egorin.
Senator Cortez Masto. Thank you very much. Ms. Egorin,
thank you for the support of this piece of legislation, the
Workforce Parity Act. Can you talk a little bit about how it
would help build the workforce pipeline in Indian Country?
Ms. Egorin. Yes, thank you for that question, Senator. I
want to thank Senator Smith, she actually met with the
Secretary when he was out in the district and talked about
these issue, and the need for support and increased capacity in
our tribal health care workforce.
This bill would allow the flexibility you were just talking
about, whether that is being able to recruit health care
providers who want to serve tribal communities, but also have
family or other obligations, to be able to split their time, or
true rural communities that may not have full capacity, may not
need somebody 40 hours a week, to be able to utilize their
clinical time as well as administrative time or other time to
serve that community.
So it builds capacity. We have seen that it builds the
ability to recruit people and retain people, which is a
critical need.
Senator Cortez Masto. Thank you. Thank you to all the
panelists. Thank you to every one of you. The advocacy and what
we hear from you is so important as we look to passing this
legislation and doing right by Indian Country. Thank you.
The Chairman. Senator Smith?
Senator Smith. Thank you so much, Chair Schatz.
President Larsen, welcome again. I am so glad to be with
you. Could you just explain to us, we think about these IRA
corporate charters, I think sometimes it is hard for people to
understand the real world implications for what these charters
mean and how they end up constraining the Lower Sioux.
Could you tell us a little bit more? How does it make life
more difficult exactly?
Mr. Larsen. Thank you, Senator Smith. I apologize, I forgot
to thank you personally for championing this.
Senator Smith. You did earlier this morning, so it is okay.
[Laughter.]
Mr. Larsen. The charter was not written with sovereignty in
mind, tribal sovereignty. It is actually an impediment to
tribal sovereignty. The language that is restrictive and
paternalistic, such as the contracts cannot be made for more
than three years at a time. If we want to borrow money over
$1,000, we have to get approval from the Federal Government.
So when we go to banks, they don't want to deal with that.
They don't want to work with us, looking at that as a
possibility.
Also, it has potential for exorbitant and egregious legal
fees. So revoking the charter is to us a step toward self-
governance.
Senator Smith. It seems, even though you sort of put it to
the side, you are not required to use it, it still constrains,
for example, how banks might think about what you are working
on.
Mr. Larsen. Correct.
Senator Smith. Of course, symbolically, it is a sign of, we
both used the word paternalistic in our discussion of it. So I
am thinking about, there are so many great things that you all
are doing. As you know, I am very interested in the work that
you are doing around building houses made out of hemp. I wonder
if you just might share a little bit about that project, in
mind like how this revocation of the corporate charter would
help to do that work more efficiently and effectively.
Mr. Larsen. Certainly. Senator, I thank you for bringing up
that effort, the effort that we have to bring our citizens a
safer, healthier and more energy efficient home that could
potentially last for generations. All the while it cleans the
carbon out of the air. And while it is standing and lasting for
generations, as I said, it continues to clean the carbon out of
the air.
We are currently building a hemp campus which will house
our processing equipment. We are getting funding for that.
People did look at that possibility. They said, well, what
about this, and we had to take more time to explain that the
governance that we have does not use the corporate charter. It
is in people's minds. So if we could get rid of that, I think
it would speed up the process for the things we are trying to
do in the future.
Senator Smith. Right. Thank you so much.
I want to just take the opportunity, Chief Lankford, while
we have both of you on the panel, I wonder if you would tell us
a little bit about how the work that you all did with the
revocation of your corporate charter and what that has meant
for the Miami Tribe.
Mr. Lankford. Senator, I have to take a moment and thank
you for your efforts to help this Nation, as I want to thank
Senator Mullin, then Congressman Mullin, for his help. Yes,
everything he is saying, it is really hard for tribes at times.
We have enough trouble with banks, being a sovereign nation. We
actually lost a bank, they got in there, they saw the corporate
charter, and were like what's this, and they just panicked.
So it is a real hindrance, it is an archaic thing. I have
to thank you for helping tribes to remove that impediment that
should have never been there in the first place. Mihsi neewe.
Senator Smith. Thank you so much. Thank you, Mr. Chair.
The Chairman. Thank you very much.
I have one question for the Assistant Secretary Egorin. It
is no secret that getting providers to serve in Indian Country
and Alaska, particularly in rural areas, is a tremendous
challenge. So I support giving more flexibility to IHS to
recruit and retain providers.
What are HHS and HRSA doing to improve provider recruitment
and retention in Native Hawaiian health care systems, which
face similar challenges?
Ms. Egorin. Thank you, Senator, for being able to talk
about the work that HRSA is doing to oversee the Native
Hawaiian Health Scholarship Program, which provides
scholarships for 300 Hawaiians in primary and behavioral health
disciplines. So it is working to expand the health workforce
for Native Hawaiians. Those who have served, the majority
continue to serve, once they go through this training, continue
to serve medically high need areas in the populations within
Hawaii. So it shows that the investments in having people serve
in communities have people stay in communities.
The Chairman. Thanks very much.
Could the tools proposed in S. 3022 be applicable to the
Native Hawaiian health care systems?
Ms. Egorin. Senator, if it is okay with you, I would
actually like to make sure that I go back to HRSA and get the
correct information and have a technical conversation with your
staff.
The Chairman. Okay. Thank you very much.
If there are no more questions for our witnesses, members
may also submit follow-up questions for the record. The hearing
record will be open for two weeks. I want to thank all the
witnesses for their time and their testimony. I know how hard
it is to get to Washington, and I really appreciate all these
tribal leaders and also Administration officials for making the
journey, and also the testifier online as well.
This hearing is adjourned.
[Whereupon, at 11:40 a.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Kabir Thatte, Vice President, Policy and External
Affairs, DigDeep
The United States has a hidden water crisis: over 2.2 million
people across America lack running water or proper sanitation. This is
the water access gap, where people are forced to ration their water
supplies, families must haul water from distant sources, and children
cannot play in their wastewater-flooded yards.
The water access gap disproportionately impacts Tribal communities;
Native American households are 19 times more likely to live without
water than white households. An estimated one in 10 Native Americans
lack access to safe drinking water or sanitation \1\ and an estimated
48 percent of households on Native American reservations face this
issue. \2\ For so many, accessing clean water is a costly, daily
struggle that negatively impacts their mental and physical health and
takes time away from school and work.
---------------------------------------------------------------------------
\1\ Lakhani, Nina. ``Tribes Without Clean Water Demand an End to
Decades of US Government Neglect.'' The Guardian, 28 Apr. 2021,
www.theguardian.com/us-news/2021/apr/28/indigenous-americans-drinking-
water-navajo-nation.
\2\ Water Delayed is Water Denied.'' Democratic staff of the House
Committee on Natural Resources, 2016, https://
democratsnaturalresources.house.gov/imo/media/doc/
House%20Water%20Report_FINAL.pdf.
---------------------------------------------------------------------------
Roughly 30 percent of people on the Navajo Nation are forced to
purchase bottled water, haul water long distances, or use contaminated
water to meet their basic needs. Across Alaska, thawing permafrost and
sinking land routinely threaten infrastructure in Alaska Native
communities, fundamentally changing where people can live, and how they
can access water. In Montana, many Tribal wells are contaminated,
causing greater rates of chronic diseases. \3\ At the height of the
COVID-19 pandemic, the rate of COVID-19 cases for Native Americans and
Alaska Natives was 3.5 times higher than the rest of the nation, as
water access is fundamental to basic hygiene and disease and virus
prevention. \4\
---------------------------------------------------------------------------
\3\ ``Reviving Traditional Aps alooke Water Sources.'' High Country
News, www.hcn.org/issues/53.8/north-water-reviving-
traditionalapsaalooke-water-sources.
\4\ ``The COVID-19 Outbreak in the Navajo Nation NMAI Magazine.''
NMAI Magazine, www.americanindianmagazine.org/story/the-covid-19-
outbreak-in-the-navajo-nation.
---------------------------------------------------------------------------
We live in the richest country on the planet, yet over 25 percent
of Native Americans live in poverty. \5\ For each year that we allow
the water access gap to persist, households lose nearly $16,000 per
year, often more than their net annual income. \6\ Without sustained
access to water, families will continue to be stuck in a cycle of
poverty, as they are forced to make unreasonable choices for water
allocation and household spending. Without basic access to clean water,
it is impossible for a person to live in dignity.
---------------------------------------------------------------------------
\5\ Tec, Dedrick Asante-Muhammad Esha Kamra, Connor Sanchez, Kathy
Ramirez and Rogelio. ``Racial Wealth Snapshot: Native Americans;
NCRC.'' NCRC, 7 Apr. 2022, ncrc.org/racial-wealth-snapshot-native-
americans.
\6\ ``Draining--DIGDEEP.'' DIGDEEP, digdeep.org/draining.
---------------------------------------------------------------------------
New influxes of federal funding, including the Bipartisan
Infrastructure Law (BIL) have been key in addressing infrastructure
issues, but not deficits. Accelerated funding in the last few years was
not intended to close the water access gap. Additionally, specific
programs that are aimed at providing new infrastructure investments--
such as Section 50208, the Decentralized Wastewater Grant Program--have
not yet received any funding. Congress needs to develop more targeted
programs to address remaining infrastructure and access needs, or the
gap will remain open and continue to widen. As we celebrate new
victories on replacing crumbling and contaminated infrastructure
nationwide, we must recognize that progress is uneven.
Four key elements continue to prevent effective access and
sanitation for Tribal communities: (1) Technical assistance is urgently
needed for Tribes to plan and design necessary systems to address the
lack of access to clean drinking water and bring those plans to a
``shovel ready'' stage in order to utilize available construction
funding. (2) Tribes need support to develop the technical, managerial,
and financial (TMF) capacity necessary to develop fully functional and
self-sustaining utilities. (3) Construction funding is not currently
available to connect essential community facilities, like schools and
clinics, to centralized water and sanitation, which negatively impacts
Tribal economic development. (4) Tribes cannot rely on the same types
and volumes of revenue streams to support operation and maintenance
(O&M) of water systems; new initial and temporary O&M assistance is
sorely needed.
The Water Access Gap
At least 2.2 million people across the U.S. have no regular
access to running water or flush toilets. \7\
---------------------------------------------------------------------------
\7\ ''Close the Water Access Gap.'' DIGDEEP, www.digdeep.org/close-
the-water-gap. Accessed 18 Sept. 2023.
Native American households are 19 times more likely to live
---------------------------------------------------------------------------
without water than white households.
Black and Latino households are twice as likely to lack
running water and flush toilets than white households.
44 million Americans are served by water systems that have
had a recent health-based Safe Drinking Water Act violation.
Water insecurity is growing nationwide.
A recent study by DigDeep, Draining: the Economic Impact of
America's Hidden Water Crisis, finds that the U.S. economy loses a
staggering $8.58 billion every year in decreased household earnings,
higher healthcare costs, lost tax revenues, and labor market
disruptions because of the water access gap. In the context of Tribal
sovereign lands: considering the number of households without piped
water on the Navajo Reservation, water insecurity may cost the Navajo
Nation and the broader U.S. economy as much as $152.5 million each
year. \8\ The federal government must intervene to close the water
access gap in order to rectify historic imbalances related to water
quality, infrastructure and funding, address the racial access and
Tribal access gaps, and ensure that the basic standard of living
enjoyed by most Americans is available to all.
---------------------------------------------------------------------------
\8\ Supreme Court of the United States. Department of the Interior
v. Navajo Nation. 20 March 2023. https://www.supremecourt.gov/
DocketPDF/21/21-1484/254361/
20230208163233914_DigDeep%20UTRF%20Amicus%20Brief%20-%20final.pdf
---------------------------------------------------------------------------
The water access gap has rippling effects on our economy, health,
labor market, and justice for disaffected communities. Past investments
in water infrastructure excluded many Tribal Nations, communities of
color, immigrant communities, low-income communities, and rural areas.
Funding in the Bipartisan Infrastructure Law is a much-needed
start, but it will not close the water access gap on its own. Congress
needs to develop more targeted programs to address remaining
infrastructure and access needs or the gap will remain open and may
continue to widen. Federal investment will benefit regions in dire
need--often places facing decline, fiscal shortfalls, and loss of
financial opportunities--allowing them to reinvest in their broader
communities and local economies.
Effects On Tribal Communities
As documented above, the water access gap has significant effects
across the United States, with Tribal communities taking a
disproportionate impact. Across many intersecting spaces in water and
sanitation, Native American communities are often left with significant
disadvantages.
Infrastructure Gaps: For many Tribal Nations, a lack of investment
in infrastructure has had significant consequences on the ability for
households to access safe and reliable water. Decades of disinvestment
or lack of investment is a lead driver of infrastructure disrepair. As
an example, Alaska has the highest proportion of the U.S. population
that lacks access to adequate water infrastructure. There are more than
30 unserved communities where 45 percent or more homes are not served
by piped, septic tanks and wells, or covered haul systems. These
unserved communities are largely located in rural areas that house
mostly American Indian/Alaska Native populations. \9\
---------------------------------------------------------------------------
\9\ Spearing, Lauryn A., et al. ``What Impacts Water Services in
Rural Alaska? Identifying Vulnerabilities at the Intersection of
Technical, Natural, Human, and Financial Systems.'' Journal of Cleaner
Production, vol. 379, Elsevier BV, Dec. 2022, p. 134596. https://
doi.org/10.1016/j.jclepro.2022.134596.
---------------------------------------------------------------------------
Such gaps in service lead to extreme water conservation and water
quality issues, exacerbating existing health disparities in Native
communities.
Polluted and Unsafe Water Sources: Contaminated water sources on
Tribal lands continue to be a major concern for public health and
adequate access. On the Crow Reservation in Montana, local water
sources are contaminated with feces, heavy metals, nitrates, and E.
coli. \10\ Crow members, along with health researchers, have identified
a connection between uranium contamination and diabetes, a growing
health crisis on the Reservation. \11\ In New Mexico, around the San
Juan Basin (the state's largest oil and gas region), there are an
estimated 40,000 wells, thousands of which are likely neglected,
abandoned, or orphaned. ``Orphaned'' oil and gas wells leak methane
into the air and groundwater that pose serious public health risks to
rural, Tribal, and communities of color. It is estimated that 1,700
wells are orphaned and abandoned on state and private land. \12\
---------------------------------------------------------------------------
\10\ Bienkowski, Brian. ``Part 1: Tainted Water Imperils Health,
Traditions for Montana Tribe.'' EHN, 8 July 2020, www.ehn.org/
part_1_tainted_water_imperils_health_traditions_for_montana_tribe-
2497203331.html.
\11\ Martin, Christine, et al. ``Our Relationship to Water and
Experience of Water Insecurity Among Aps alooke (Crow Indian) People,
Montana.'' International Journal of Environmental Research and Public
Health, vol. 18, no. 2, Jan. 2021, p. 582. https://doi.org/10.3390/
ijerph18020582.
\12\ Gilbert, Samuel. ``To Understand the Orphan Well Problem in
NM, Someone's Going to Have to Count Them.'' Source New Mexico, May
2022, sourcenm.com/2022/05/31/to-understand-the-orphan-well-problem-in-
nm-someones-going-to-have-to-count-them.
---------------------------------------------------------------------------
Weather Impacts and Reduced Water Sources: Climate change has also
ravaged water supplies and changed the nature of how people collect it.
There is a unique threat to Indigenous communities: contamination of
water supplies are rampant on Tribal lands, traditional water sources
are depleting or run dry, and issues such as drought and wildfires
continue to threaten Native communities. For example, rising
temperatures and declining rainfall have made groundwater the principal
drinking water source, as surface water on Navajo Nation is estimated
to have decreased by 98 percent of the twentieth century. \13\ Limited
water resources in Hawaii are disproportionately used by the tourist
industry (i.e., water resources are diverted to hotels), which, in
conjunction with the recent wildfires devastating Maui, will directly
impact permanent residents, including Native Hawaiians.
---------------------------------------------------------------------------
\13\ ``Navajo Women Struggle to Preserve Traditions as Climate
Change.'' The World From PRX, 25 May 2018, theworld.org/stories/2018-
05-25/navajo-women-struggle-preserve-traditions-climate-change-
intensifies.
---------------------------------------------------------------------------
Insufficient Data: Additionally, data continues to result in less
attention and infrastructure investment for Native American homes. It
is well documented that survey data has repeatedly undercounted Native
Americans, particularly the U.S. Census. \14\ Insufficient data has
inevitably led to diminished investment in water access for Indigenous
communities; for other fundamental issues, including housing grants and
other federal assistance, undercounting communities severely reduces
funding allocations for Tribal governments. \15\ The few entities
having better data collection and analysis (i.e., the Indian Health
Services' Sanitation Facilities Deficiency List), \16\ however, have
been able to justify and obtain higher funding levels.
---------------------------------------------------------------------------
\14\ ``The US Government Has Always Undercounted Native Americans.
But COVID-19 Could Make the 2020 Census a Disaster.'' Mother Jones,
www.motherjones.com/politics/2020/06/census-coronavirus-native-
americans.
\15\ Udall, Senators Press for Accurate 2020 Census Count for
Native Communities the United States Senate Committee on Indian
Affairs. www.indian.senate.gov/news/press-release/udall-senators-press-
accurate-2020-census-count-native-communities.
\16\ https://www.ihs.gov/sites/dsfc/themes/responsive2017/
display_objects/documents/FY_2021_Appendix_Project_Listing.pdf
---------------------------------------------------------------------------
Barriers To Accessing Government Funding
Tribal, rural, disadvantaged, and low-income communities have the
greatest need for financial assistance to bridge a historical gap in
water and wastewater services. Larger, more populated communities
around the nation enjoy the benefit of having a working tap and flush
toilet, components of a standard of living everyday Americans have come
to rely on. These municipalities have a documented greater likelihood
of accessing Clean Water SRFs (CWSRFs), primarily due to more
substantive resources, as well as a risk that state agencies may not
allocate funds equitably between larger communities and more
disadvantaged communities. \17\ Comparatively smaller communities face
challenges in accessing SRFs for a variety of reasons.
---------------------------------------------------------------------------
\17\ Environmental Policy Innovation Center. ``New Report: Small
Towns and Communities of Color Less Likely to Receive Funding for Clean
Water Infrastructure--Environmental Policy Innovation Center.''
Environmental Policy Innovation Center, 1 May 2023,
www.policyinnovation.org/blog/fairer-funding-stream.
---------------------------------------------------------------------------
Native American communities and other communities of color--which
face much higher rates of water insecurity--often bear the greatest
burden of inequitable access to clean water infrastructure and have the
most pressing need for CWSRF resources. \18\ These communities have
faced the greatest level of discrimination in terms of government
investment and attention historically, and these issues persist today.
---------------------------------------------------------------------------
\18\ Ibid.
---------------------------------------------------------------------------
Smaller communities also face significant hurdles in receiving
much-needed funds due to resource constraints. While funding sources
like SRFs may have intention to tackle inequalities, without adequate
technical assistance, education, or capacity, there remains a wide
accessibility gap for disadvantaged communities.
These barriers are accentuated in a few key areas across rural,
disadvantaged, low-income, or Tribal communities:
Eligible Applicants for Funding are Overburdened: Directors and
operators of water and wastewater service districts in rural and
disadvantaged communities are often stretched thin due to
understaffing, older and more time-intensive technology, increased
maintenance due to aging infrastructure, and high turnover rates. This
dearth in capacity can make the SRF application process intimidatingly
complex and time-consuming for eligible applicants. In some cases, the
person(s) most likely to initiate or drive action on community
infrastructure projects may not be the same person(s) eligible to apply
for and navigate the SRF application. In other cases, awareness of
existing grants and loans may be limited, a particular challenge in
areas lacking quick and reliable Internet connection or a high level of
technological literacy, as much of this work is conducted online.
Inadequate Technical Expertise: Rural and disadvantaged communities
encounter a series of systemic barriers and may lack technical
expertise to implement innovative solutions (for example, alternative
decentralized water and wastewater systems) according to EPA standards.
\19\
---------------------------------------------------------------------------
\19\ ''DWIC--DIGDEEP.'' DIGDEEP, www.digdeep.org/dwic.
---------------------------------------------------------------------------
Traditional wastewater solutions are often an unsustainable, narrow
approach to solve a complex set of community concerns. In addition,
many small systems lack certified operators, engineers, and/or plumbing
and pipefitting professionals, creating high barriers to entry.
Limited Funding for Operations and Maintenance: First-time systems'
funding is a critical need, albeit limited in its current state. Small,
disadvantaged communities cannot use Drinking Water SRFs (DWSRFs) \20\
or CWRSFs for much-needed operations and maintenance work. \21\
Sustainability is a difficult factor for smaller communities to
implement if there are no consistent funds to ensure that local water
and wastewater systems do not face risks of failing or shutting off.
Tribes cannot rely on the same types and volumes of revenue streams to
support O&M of water systems.
---------------------------------------------------------------------------
\20\ Association of State Drinking Water Administrator. ``State
Drinking Water Program Challenges and Best Practices: Small and
Disadvantaged Water System Funding and Assistance.'' PDF. https://
www.asdwa.org/wp-content/uploads/2022/08/ASDWA-White-Paper-Small-and-
Disadvantaged-Water-System-Funding-and-Assistance-FINAL-080822.pdf
\21\ ``Overview of Clean Water State Revolving Fund Eligibilities.:
U.S. EPA.May 2016. PDF. https://www.epa.gov/sites/default/files/2016-
07/documents/overview_of_cwsrf_eligibilities_may_2016.pdf
---------------------------------------------------------------------------
Loans as Barriers: For communities that face significant economic
burdens, or are low-income or facing poverty, loans are not adequate
measures to provide water and wastewater access. Some households are
unable to pay upfront costs, or to repay low-interest loans offered by
funding programs, practically barring them from accessing much-needed
support. Other communities and utilities have shared with DigDeep that
their fear of inability to fulfill repayment obligations prevents them
from seeking out loans. Additionally, declining rural populations and
rate payer bases make loans even more challenging for small utilities.
Inequality and Inconsistency Across State-Administered Funds:
Eligibility requirements for state-level funding (e.g., SRFs) can vary
considerably from state to state. Thus, there are more application
barriers for disadvantaged communities in states with stricter
eligibility requirements. This also puts an onerous burden on entities
(like Tribal nations) that cross state lines. \22\ It also makes it
difficult to disperse technical assistance resources between states.
States also have full authority to determine what ``disadvantaged''
means--with some focusing on population sizes or other factors at the
exclusion of at-risk communities. \23\
---------------------------------------------------------------------------
\22\ Ibid.
\23\ Murakami, Kery. ``States Differ Over What's a `Disadvantaged'
Community.'' Route Fifty, 5 May 2023, www.routefifty. com/
infrastructure/2023/05/clean-water-funding-isnt-helping-cities-
disadvantaged-populations/386035.
---------------------------------------------------------------------------
Solutions
Closing the water access gap will create health, happiness, and
economic prosperity in Tribal communities. However, we cannot
effectively close this gap without an accurate understanding of every
household facing water insecurity. The U.S. needs better data to
understand the full scope of economic and health-related impacts of the
water access gap. We need more actionable data--for example,
information showing the location and nature of infrastructure
deficits--to help government, the private sector, and nonprofits
prioritize and plan infrastructure projects more effectively. Without
this data, it is impossible to measure the effectiveness of costly
interventions such as the recent Bipartisan Infrastructure Law.
A lack of flexible, targeted federal funding is one of the key
barriers to solving this problem once and for all. As discussed below,
especially for low-income communities facing the most acute challenges
regarding running water and sanitation, federal funding flexible enough
to support the work of nonprofits would make an enormous difference.
New technology is making it possible to build decentralized systems
that, once installed, are affordable to operate and maintain.
Decentralized systems have the potential to provide water and
sanitation access to thousands of communities--and dedicated operation
and maintenance will ensure sustained access for years to come.
Greater investment into long-term O&M infrastructure will be
critical to ensuring sustained water access forever. \24\ When a water
system falls into disrepair, more people are susceptible to falling
into the water access gap. Investments do not go far enough, as many
rural and Tribal communities may not be able to access O&M investments
effectively. \25\ Targeted investments in operations and maintenance
are key solutions to preventing problems. Replenishing the fledgling
workforce in maintaining water systems will be instrumental in ensuring
people do not lose access to water and sanitation over time.
---------------------------------------------------------------------------
\24\ https://www.epa.gov/sites/default/files/2015-07/documents/
meeting-the-access-goal-strategies-for-increasing-access-to-safe-
drinking-waterand-wastewater-treatment-american-indian-alaska-native-
villages.pdf
\25\ ''Draining--DIGDEEP.'' DIGDEEP, digdeep.org/draining.
---------------------------------------------------------------------------
Several key solutions include:
Eliminate Barriers to Government Funds: Apply agency resources to
identify inefficiencies, eliminate burdensome steps in application and
implementation, and reduce upfront costs of application for the largest
programs (e.g., CWSRF and USDA-RD programs) to improve workflows for
funding access. Additionally, eligibility and application criteria
should be made more consistent across states. Accessing government
funds to create first-time water systems should not be a barrier to
complete plumbing, and Native communities must be treated equitably
when considered for federal funding.
Expand Existing Technical Assistance Efforts: Ongoing technical
assistance efforts are incredible mechanisms for ensuring communities
are well-equipped to handle additional capacity burdens. TA programs,
such as the EPA Technical Assistance for Rural, Small, and Tribal
Wastewater Systems program, should be better funded and expanded
significantly to help support communities lacking the ability to apply
for and execute project funding and assistance programs. Increased
funding for TA programs, including those existing under the Indian
Health Service or the Bureau of Reclamation's current Native American
Affairs Technical Assistance Program, will rapidly improve outcomes for
Tribal communities.
Diversify Funding for New Technologies and Training: Some parts of
the U.S. are simply not a good fit for traditional utility services.
Many Native households are decentralized, particularly in Alaska, on
the Navajo Nation, and across reservations. In many of these contexts,
navigating topography can be too challenging, or simple setup and
installation are too expensive. The federal government must expand
funding for communities to apply decentralized technology, and support
efforts like workforce development that are crucial for O&M, and the
long-term success of these systems, as installing the technology
without local technical expertise to sustain it will lead to disrepair
and underuse. Further, authorizing federal agencies to make grants for
technical and financial assistance for training will go far in bridging
the skills gap that continues to grow.
Expand Grants, Not Loans: For impacted communities, repayment of
loans may be cumbersome, as many of these communities are already
economically disadvantaged. Grants are key to ensuring that other
economic burdens are not placed on households in these communities.
Disadvantaged communities should not have to face additional financial
burdens by repaying water and sanitation projects, particularly with
the likelihood of new increased costs for households in the form of
water bills.
Provide Guides to Access Funds: Funding programs and technical
assistance are important investments, and additional, publicly-
available, user-friendly resources will aid disadvantaged communities
even further. This includes guides for best practices, as well as
strategies for states and recipients to best utilize funding sources
like CWSRFs.
Closing
Everyone deserves a human right to water and sanitation. For far
too long, Native Americans have faced disproportionate levels of water
insecurity, poverty, and health disparities. For too many Tribal
families, water has become a privilege and not a right; the richest
democracy in the world has more to prove by eliminating this water
access gap, once and for all. Ensuring this basic human right will
empower Tribal communities and unlock positive change for generations
to come.
______
Prepared Statement of the U.S. Department of Agriculture (USDA)
Chairman Schatz, Vice Chairman Murkowski, and Members of the
Committee, thank you for the opportunity to present the views of the
U.S. Department of Agriculture (USDA) on S. 2385, the ``Tribal Access
to Clean Water Act of 2023.'' The objective of the bill is to provide
access to reliable, clean, and drinkable water on Tribal lands.
This bill proposes extending the provisions of 306C (Water and
Waste Disposal Loans and Grants) and 306D (Water Systems for Rural and
Native Villages in Alaska) of the Consolidated Farm and Rural
Development Act (7 U.S.C. 1926c, 1926d) and providing authorization for
additional funds. USDA supports the goals of this bill and would like
to work with the Committee and bill sponsors to address the concerns
identified in this testimony and to implement any changes to the
programs effectively and efficiently. The Agency is committed to
working with our partners to achieve these goals.
Section 4(a)--Extension of Authority for Grants and Loans
This section of the bill allows eligible entities, as defined in
subsection (c) of this section, to access grants and loans for not only
existing purposes, but also for technical assistance.
USDA supports the need to provide additional technical assistance
for these awards, particularly for underserved communities. Currently,
under sections 306C and 306D of the Consolidated Farm and Rural
Development Act (7 U.S.C. 1926c, 1926d), there are set asides for
Tribal, Colonias, and Rural Alaska Village Grant programs, and yet only
the Rural Alaska Village program in section 306D has a technical
assistance component. Of the Technical Assistance and Training Grants
program (7 U.S.C. 1926(a)(14)) funding received, recent appropriations
have carried a requirement to award at least $800,000 in funding to
support a nationwide Tribal Organization in providing technical
assistance for rural water systems. However, this program is annually
oversubscribed.
USDA has long supported efforts to increase access to technical
assistance and build capacity to plan and develop projects. Projects
and entities receiving technical assistance are more likely to submit a
competitive and successful application for funding and allows USDA to
make awards in areas and to entities that may not have accessed USDA
resources in the past.
USDA strongly supports this change and would like to work with bill
sponsors and the Committee to build out a robust technical assistance
program.
Section 4(b)--Authorization of Appropriations
This section of the bill would allow for additional authorizations
for the program awards and technical assistance, up to $100,000,000 and
$30,000,000 respectively. These amounts would be an increase of funding
and would allow for USDA to effectively make awards to existing and
newly eligible entities. USDA strongly supports this new language.
USDA is concerned, however, because in the draft House
Appropriations Budget for FY24, the proposed funding for the 306C and
306D programs have been dramatically cut, down to $30 million from the
FY23 enacted amount of $70 million--a decrease of about 57 percent.
While additional authorizations are welcomed, USDA would also encourage
funding these programs at the Administration's requested level of $87
million, but at the very least straight lining the enacted level of $70
million. The improvements provided by the bill go hand in hand with
full funding for the program.
USDA would like to work with the bill sponsors, the Committee, and
appropriators to identify the right funding levels and support needed
for these programs to be successful.
Section 4(c)--Eligible Entities
This section would expand the definition of eligible entities able
to access the 306C and 306D programs to include tribal nations, Native
Hawaiians, and Alaska Native Corporations (ANCs).
USDA supports expanding the definition of eligible entities in
order to better serve more communities in need of access to clean water
and waste disposal resources. USDA also suggests that in order to be as
inclusive as possible, the bill sponsors and Committee also consider
additional changes that would make eligibility for tribal nations,
Native Hawaiians, and ANCs easier. These would include excluding
certain requirements of 306C(a)(2)(A), which are already waived through
306C(a)(2)(B) for colonias. USDA's Water and Environmental Programs
(WEP) has conducted outreach and listening sessions with tribes and
other eligible entities as part of the Agency's revisions to
implementing regulations at 7 CFR 1777. During this outreach,
participants and potential applicants consistently voiced concerns
about the eligibility requirements related to the per capita and
unemployment requirements found at 306C(a)(2)(A). These requirements
substantially limit the ability of tribal nations, Native Hawaiians,
and ANCs to access WEP programs authorized through 306C, including the
Tribal set-asides grants.
(2) Certain areas targeted
(A) In general--Loans and grants under paragraph (1) shall be made
only if the loan or grant funds will be used primarily to provide water
or waste services, or both, to residents of a county--
(i) the per capita income of the residents of which is not more
than 70 percent of the national average per capita income, as
determined by the Department of Commerce; and
(ii) the unemployment rate of the residents of which is not
less than 125 percent of the national average unemployment
rate, as determined by the Bureau of Labor Statistics
Additionally, USDA does not currently have a WEP program
specifically targeting Hawaiian Homelands. USDA looks forward to
working with the Committee to make sure that Native Hawaiians and their
communities are served.
USDA would like to work with the bill sponsors and the Committee to
determine how best to serve the most with these programs.
Section 4(d)--No Matching Contribution
This section would eliminate the need for a matching contribution
(306D(b)) from the eligible entity in order to access these resources.
USDA strongly supports this change and looks forward to working with
the bill sponsors, the Committee, and eligible entities in implementing
this change.
Section 4(e)--Priority for Funding
This section would require the Secretary of Agriculture to
prioritize eligible entities in the same manner as individuals who
reside in colonias and to eliminate the requirement that eligible
entities demonstrate an inability to finance the project themselves or
through a commercial lender. USDA supports this section and looks
forward to working with the Committee to ensure that the eligibility
criteria match Congress' intent, particularly with respect to ANCs and
Native Hawaiian Communities.
Section 4(f)--Interagency Collaboration
This section would require the Secretary of Agriculture to consult
with the Director of the Indian Health Services on agency
collaboration, project prioritization, and staffing needs to ensure the
amounts appropriated under subsection (b) of the bill are used in the
most effective manner to promote access to water and sanitation.
USDA supports this change as it formalizes coordination already
being undertaken between USDA, the Indian Health Service, and funding
partners serving these communities.
Conclusion
USDA supports the goals of this bill and would like the opportunity
to work with the Committee and bill sponsors to address the issues we
have identified.
______
February 6, 2024
Hon. Brian Schatz, Chairman;
Hon. Lisa Murkowski, Vice Chairman,
Senate Committee on Indian Affairs,
Washington, DC.
Dear Chairman Schatz and Vice Chairman Murkowski,
I write today in strong support of the Winnebago Land Transfer Act
of 2023. I thank you for bringing this important piece of legislation
before the Senate Committee on Indian Affairs.
The Winnebago Tribe of Nebraska (Tribe) and it's 5,000 tribal
members reside on a reservation along the Missouri River in
northeastern Nebraska and northwestern Iowa. Originally, the Winnebago
people called present-day Wisconsin home, but in the mid-1800s, they
were moved by the U.S. Army to Minnesota, Iowa, South Dakota, and
finally to the Winnebago Reservation, as recognized today. Through the
Treaty of 1865, the U.S. government promised this land as ``. . . set
apart for the occupation and future home of the Winnebago Indians,
forever. . . .''
In the 1970s, the United States Army Corps of Engineers (USACE)
condemned tracts of the Winnebago Reservation on both sides of the
Missouri River through the use of eminent domain to implement flood
mitigation and recreational projects. With subsequent litigation and
appeals, the courts ultimately ruled in favor of the Tribe and stated
that the USACE had illegally taken the land. However, the land on the
eastern side of the river could not be returned to the Winnebago people
because of a doctrine known as ``res judicata.'' Congressional action
is the only option afforded to the Tribe to reclaim their 1,600 acres
from the USACE.
As a way to remedy the situation, I helped introduce the Winnebago
Land Transfer Act of 2023, alongside Senators Deb Fischer, Chuck
Grassley, and Pete Ricketts. This legislation would transfer
administrative jurisdiction of the land from the USACE to the Bureau of
Indian Affairs to hold in trust for the Winnebago Tribe of Nebraska.
This common-sense measure simply corrects a wrong and returns the 1,600
acres of marsh, which the USACE never had the authority to condemn
nearly 50 years ago.
Under your continued leadership and commitment to the Alaska
Natives, Native Hawaiians, and American Indians, I ask the Senate
Committee on Indian Affairs to quickly pass the Winnebago Land Transfer
Act of 2023. Thank you for your consideration and action.
Sincerely,
Hon. Joni K. Ernst, U.S. Senator
______
February 22, 2024
Hon. Brian Schatz, Chairman;
Hon. Lisa Murkowski, Vice Chairman,
Senate Committee on Indian Affairs,
Washington, DC.
Dear Chairman Schatz and Vice Chairman Murkowski,
On behalf of our organizations' millions of members and supporters,
we write to express our support for the Tribal Access to Clean Water
Act of 2023, and thank you, and your hard-working staff, for holding a
legislative hearing on the bill on February 8, 2024.
Our organizations have a long history of supporting Colorado River
restoration, bird and wildlife habitat conservation, and diverse
stakeholder engagement. The Colorado River is one of the American
West's national treasures. It is a foundation for the West's economy,
supporting five million acres of irrigated farmland that deliver
produce nationwide, and providing drinking water for over 40 million
people, including under-served Tribal and rural communities. The
Colorado River is also an essential part of the cultural fabric for 30
federally-recognized Tribal Nations that call the Basin home. The
river, though, is in crisis. Reservoirs in the Colorado River Basin are
at historic lows after more than twenty years of drought and climate-
related changes. Resulting diminished stream flows pose increasingly
serious challenges for cities, farms, wildlife, and recreation. Last
year's wet winter brought a short reprieve but did not address the
long-term aridification of the region.
Funding programs and projects that help address historic western
drought conditions will support Tribes, communities, and agriculture,
as well as fish and wildlife. The Infrastructure Investment and Jobs
Act (IIJA) and Inflation Reduction Act (IRA) provided significant
investments for addressing western water infrastructure challenges,
including addressing decades of underinvestment in Tribal water and
wastewater systems. While IIJA and IRA are an important step forward,
Tribes often lack capacity and resources to navigate, apply for, and
administer the complex array of available federal programs. Grant
writing assistance, engineering evaluation and design of water
infrastructure systems, and training of certified operators are all
critical for ensuring that the infrastructure funding is utilized
expeditiously and appropriately. Securing sufficient cash funding or
collateral for meeting federal match requirements is also a significant
barrier to Tribes in accessing certain federal funding opportunities.
S. 2385, the Tribal Access to Clean Water Act of 2023, makes
significant strides in addressing the barriers Tribes must navigate in
terms of accessing federal funding for much needed water and wastewater
infrastructure improvements. We look forward to continuing to work with
you on removing such barriers and creating more equitable access to
federal programs.
We appreciate the Committee's consideration of this bill and
encourage its advancement to support clean water for Tribes. Thank you
again for your leadership.
Sincerely,
American Rivers
National Audubon Society
The Nature Conservancy
Theodore Roosevelt Conservation Partnership
Trout Unlimited
Western Resource Advocates
______
February 7, 2024
Hon. Brian Schatz, Chairman;
Hon. Lisa Murkowski, Vice Chairman,
Senate Committee on Indian Affairs,
Washington, DC.
Dear Chairman Schatz and Vice Chairman Murkowski,
I am pleased to be a co-sponsor of S. 3230, the Winnebago Land
Transfer Act of 2023. About 150 years ago, the Winnebago Reservation
was created by treaty. However, in the 1970s, the Army Corps of
Engineers condemned a portion of the reservation along the Missouri
River. After years of legal fights, the Eighth Circuit Court of Appeals
ruled that the taking was unlawful, returning the Tribe's land on the
Nebraska side of the river. Unfortunately, the land on the Iowa side
was never returned because the Tribe did not preserve its right to
appeal the case. The same arguments apply on both sides of the river,
and the courts have made clear that the Army Corps did not have the
authority to condemn this land.
Earlier this week, the House version of this bill, H.R. 1240,
easily passed the House of Representatives. After many years of
waiting, it is now time to right this wrong. I would like to thank you
for holding this hearing and for engaging in thoughtful discussion on
this important topic.
Sincerely,
Hon. Charles E. Grassley, U.S. Senator
______
The Navajo Nation
January 31, 2024
Hon. Brian Schatz, Chairman;
Hon. Lisa Murkowski, Vice Chairman,
Senate Committee on Indian Affairs,
Washington, DC.
Dear Chairman Schatz and Vice Chairman Murkowski,
I am writing to express strong support for the Tribal Access to
Clean Water Act, S. 2385 and H.R. 4746, which will provide technical
assistance, capacity, and resources to address the inequity in access
to clean water for Tribes.
Access to clean water is a basic human right. Clean water is
foundational for human health, growing economies, and a minimum level
of support for communities. However, an estimated 48 percent of Native
American households do not have clean water or adequate sanitation.
Indeed, Native American homes are 19 times more likely than white
households to lack indoor plumbing. Such water inequity is particularly
egregious in light of the federal treaty and trust responsibility to
ensure Tribes have a viable, permanent homeland. Water is a necessity
for any homeland.
Funding for safe drinking water systems for Tribal communities
received a significant boost from the Infrastructure Investment and
Jobs Act and the Inflation Reduction Act. While groundbreaking and long
overdue, the funding now available for construction and repair of
Tribal water systems is not a complete solution. Technical assistance
is needed to allow Tribes to plan and design the systems necessary to
access clean drinking water and bring those plans to the ``shovel
ready'' stage where they can take advantage of the newly available
construction funding.
While the Navajo Nation is blessed to have created a multi-purpose
utility in 1959, many Tribes need support to develop the managerial,
financial, and regulatory capacity required for a fully functional and
self-sustaining utility. Importantly, because Tribes, including the
Navajo Nation, cannot currently rely on the same types and volumes of
revenue streams to support operation and maintenance (O&M) of water
systems, O&M assistance helps to ensure that the benefits of the
historic investment in infrastructure are fully realized and allows the
customer to put their income to other uses, such as food, education,
and childcare.
The Tribal Access to Clean Water Act of 2023 would address these
gaps and advance the federal government's treaty and trust obligations
to provide clean and accessible water for Native communities. I
strongly support swift passage of The Tribal Access to Clean Water Act.
Sincerely,
Dr. Buu Nygren, President, Navajo Nation
______
Clean Water for All Coalition
August 29, 2023
Hon. Brian Schatz, Chairman;
Hon. Lisa Murkowski, Vice Chairman,
Senate Committee on Indian Affairs,
Washington, DC.
Dear Chairman Schatz and Vice Chairman Murkowski,
On behalf of the Clean Water for All Coalition, we are writing to
express our strong support for the Tribal Access to Clean Water Act, S.
2385 and H.R. 4746, which will provide badly needed technical
assistance, capacity, and resources to address the inequity in access
to clean water for Tribes.
Access to clean water is a basic human right. Clean water is
foundational for human health, growing economies, and a minimum level
of support for communities. However, 48 percent of households on Native
American reservations do not have clean water or adequate sanitation.
Native American homes are 19 times more likely than white households to
lack indoor plumbing.
Funding for safe drinking water systems for Tribal communities
received a significant boost from the Infrastructure Investment and
Jobs Act and the Inflation Reduction Act. While groundbreaking and long
overdue, the funding now available for construction and repair of
domestic water systems in Indian country is not a complete solution.
Technical assistance is needed to allow Tribes to plan and design the
systems necessary to access clean drinking water and bring those plans
to the ``shovel ready'' stage where they can take advantage of the
newly available construction funding. In addition, Tribes need support
to develop the managerial, financial, and regulatory capacity required
for a fully functional and self-sustaining utility. Finally, because
Tribes cannot rely on the same types and volumes of revenue streams to
support operation and maintenance (O&M) of water systems, O&M
assistance helps to ensure that the benefits of the historic investment
in infrastructure are fully realized.
The Tribal Access to Clean Water Act of 2023 would address these
gaps and advance the Federal Government's treaty and trust obligations
to provide clean and accessible water for Native communities. We
strongly support swift passage of The Tribal Access to Clean Water Act.
Sincerely,
Heather Tanana, Initiative Lead, Universal Access to Clean
Water
Cindy Lowry, Executive Director, Alabama Rivers Alliance
Colton Fagundes, Policy Director, American Sustainable
Business Network
Harriet Festing, Executive Director, Anthropocene Alliance
Beth K. Stewart, Executive Director, Cahaba River Society
Tracy Kolian, Health Policy Consultant, Children's
Environmental Health Network
Sean Jackson, National Water Campaigns Organizer, Clean
Water Action
Julian Gonzalez, Senior Legislative Counsel, Earthjustice
Ann Mesnikoff, Federal Legislative Director, Environmental
Law & Policy Center
Val Schull, Water Equity and Ocean Program Director, Green
Latinos
Alicia Vasta, Water Program Director, Iowa Environmental
Council
Laura Gregory, Watershed Program Director, Kentucky
Waterways Alliance
Lizzy Duncan, Government Affairs Representative, Healthy
Communities League of Conservation Voters
Cynthia Robertson, Executive Director, Micah Six Eight
Mission
Wendy Weaver, Executive Director, Montana Freshwater
Partners
Garrit Voggesser, National Director, Tribal Partnerships,
National Wildlife Federation
Rebecca Hammer, Deputy Director of Federal Water Policy,
Natural Resources Defense Council
Sylvia Orduno, Managing Director, People's Water Board
Coalition
April Ingle, Advocacy Director, River Network
Elaine Packard, Chair, Sierra Club's National Grassroots
Network Water Sentinels Team
Jessica Dandridge, Executive Director, The Water
Collaborative of Greater New Orleans
Alex Funk, Director of Water Resources; Senior Counsel,
Theodore Roosevelt Conservation Partnership
Sara Porterfield, Western Water Policy Advisor, Trout
Unlimited
Tahlia Bear, Indigenous Peoples Engagement Manager, Western
Resource Advocates
Debra Buffkin, Executive Director, Winyah Rivers Alliance
______
Vessel
February 2, 2024
Hon. Brian Schatz, Chairman;
Hon. Lisa Murkowski, Vice Chairman,
Senate Committee on Indian Affairs,
Washington, DC.
Dear Chairman Schatz and Vice Chairman Murkowski,
VesselTM, America's Domestic WASH Collective, writes in
strong support of the Tribal Access to Clean Water Act of 2023 (S. 2385
and H.R. 4746). These bills, before both the House and Senate, provide
a necessary vehicle for ensuring the government meets its trust
obligation to provide clean and accessible water for Tribal
communities. While funding allocated through the Bipartisan
Infrastructure Law and Inflation Reduction Act have provided much
needed support for Tribal water systems, gaps in critical areas,
particularly technical assistance and operations and maintenance (O&M),
still remain. S. 2385 and H.R. 4746 seek to address these gaps through
the availability of dedicated funds.
VesselTM is a collective of U.S. WASH organizations
fighting for universal access to water and sanitation in the U.S. Over
2 million people are forced to live in the water access gap--where
families and children across America are without access to running
water or a working toilet at home--a number that is disproportionately
made up of Native Americans. This water access gap has a significant
impact on our economy, causing a $8.6 billion loss each year. \1\
VesselTM brings together organizations across the private,
nonprofit, academic, utility, and philanthropic sectors to find
solutions to the crisis in our own backyards. The collective actively
coordinates policy advocacy efforts to remove barriers to WASH access
and improve government funding and regulation.
---------------------------------------------------------------------------
\1\ ``Draining--DIGDEEP.'' DIGDEEP, www.digdeep.org/draining.
---------------------------------------------------------------------------
Water is a human right. Yet for so many people nationwide--
particularly Native Americans--this basic standard is out-of-reach. For
Tribal communities across the United States, reliable access to basic
services has long been a problem. An estimated 48 percent of households
on Native American reservations do not have clean water or adequate
sanitation. \2\ DigDeep and the US Water Alliance, two members of the
VesselTM collective, have reported that Native American
households are 19 times more likely than white households to lack
indoor plumbing, a statistic referenced by many government leaders and
agencies as an ongoing national issue. \3\, \4\, \5\, \6\ This
inequality was particularly acute during the COVID-19 pandemic, as
access to basic hygiene became a matter of life and death. \7\
---------------------------------------------------------------------------
\2\ ``Fact Sheet: Tribal Access to Clean Water Act of 2023''
Universal Access to Clean Water for Tribal Communities, 2024, https://
tribalcleanwater.org/wp-content/uploads/2024/01/Fact-Sheet-Tribal-
Clean-Water-legislation-2024-01.pdf
\3\ ``Close the Water Access Gap.'' DIGDEEP, www.digdeep.org/close-
the-water-gap.
\4\ ``Addressing Water and Wastewater Challenges in Tribal
Nations.'' Office of Community Service, Administration of Children and
Families, 2022, https://www.acf.hhs.gov/blog/2022/08/addressing-water-
and-wastewater-challenges-tribal-nations.
\5\ ``Padilla Leads Hearing on Improving Access to Clean Drinking
Water and Wastewater Infrastructure in Tribal Communities.'' Alex
Padilla U.S. Senator for California, 2023, https://
www.padilla.senate.gov/newsroom/press-releases/padilla-leads-hearing-
on-improving-access-to-clean-drinking-water-and-wastewater-
infrastructure-in-tribal-communities/.
\6\ ``U.S. National Statement at the United Nations 2023 Water
Conference.'' Secretary Deb Haaland, U.S. Secretary of the Interior,
2023, https://usun.usmission.gov/u-s-national-statement-at-the-united-
nations-2023-water-conference/.
\7\ ``Strengthening the Nation-to-Nation Relationship with Tribes
to Secure a Sustainable Water Future.'' United States Environmental
Protection Agency, 2021, https://www.epa.gov/system/files/documents/
2021-10/2021-ow-tribal-action-plan_508_0.pdf.
---------------------------------------------------------------------------
Historically, past investments in water infrastructure excluded
many Tribal Nations, communities of color, immigrant communities, low-
income communities, and rural areas. This lack of investment has had
significant economic impacts on Tribal communities. Nationwide, each
year that the water access gap remains open, the U.S. economy loses a
staggering $8.58 billion, or an average $15,800 per impacted household
per year. \8\ These losses take the form of water hauling costs and
water purchasing costs when reliable, potable water is unavailable--a
common occurance on many Tribal lands. Many individuals also incur
medical costs from exposure to unsafe water, or water related
stressors. In some impacted Tribal communities, these costs outweigh
average household incomes. Overtime, these costs hamper economic growth
for Tribes, and divert important resources and funding away from other
needed community investments.
---------------------------------------------------------------------------
\8\ ``Draining--DIGDEEP.'' DIGDEEP, www.digdeep.org/draining.
---------------------------------------------------------------------------
Several of our member organizations routinely work with Native
American and Alaska Native communities to ensure a high standard of
public health and safety are provided through drinking water and
sanitation solutions. This work has shown that the federal government
is a critical partner in delivering these services, and ensuring that
disconnected communities are both counted and supported.
Our collective expertise--working hand-in-hand with communities
facing disparate water insecurity issues--validate the critical need
for technical assistance and provisions for O&M. While many nonprofit
organizations are currently working to help bridge these gaps, they are
unable to provide the level of funding needed to meet the volume of
demand.
Technical assistance is an effective method of building the
capacity of Tribes. Before many Tribal communities can take advantage
of funding opportunities, they must first have knowledge of said
funding, as well as the capacity and expertise to apply. The Tribal
Access to Clean Water Act of 2023 will authorize new grants and loans
specifically for technical assistance, and increase available funding
from the U.S. Department of Agriculture, Indian Health Service (IHS),
and Bureau of Reclamation over the next five years. This increase in
funding will help move infrastructure improvement plans to a ``shovel
ready'' stage, thereby expediting delivery, and helping develop much-
needed managerial, financial, and regulatory capacities crucial for
long-term sustainability.
Unlike traditional utilities, Tribes across the U.S. do not have
access to the same revenue streams used for upkeep and system
maintenance. Unfortunately, this leaves little support for O&M, a key
component to realizing many of the investments designated in the
Bipartisan Infrastructure Law and Inflation Reduction Act. Initial
funding for building systems is an incredible boon; however, without
long-term sustainability considerations from the beginning, systems
will inevitably fail. O&M should be factored into federal funding
allocation. To that end, the Tribal Access to Clean Water Act of 2023
authorizes increased funding for O&M assistance through IHS over the
next five years.
In addition, many Tribes in the U.S. today are disproportionately
affected by climate change, including drought and extreme weather
events. Tribal and Indigenous people, for example, are more likely to
live in areas with land lost to inundation, requiring communities to
move, adapt, and repair systems at a higher rate than they would
otherwise. \9\ O&M for current water and sanitation infrastructure, as
well as the ability to learn about and utilize new technologies that
meet the needs of these communities, will enhance their resilience in
the face of climate change.
---------------------------------------------------------------------------
\9\ ``Climate Change Impacts to Water and Sanitation in Frontline
Communities in the United States (working document), Water, Sanitation,
and Climate Change in the US Series, Part 1''. Pacific Institute, 2023,
https://pacinst.org/publication/climate-change-impacts-was-2023/.
---------------------------------------------------------------------------
Reliable water and sanitation delivery provide indispensable
educational, economic, and community services. Without these essential
services, we continue to put the health and well-being of Tribal
communities at risk. Therefore, VesselTM strongly supports
the swift passage of The Tribal Access to Clean Water Act.
Everyone deserves a human right to water and sanitation. For far
too long, Native Americans have faced disproportionate levels of water
insecurity, poverty, and health disparities. For too many Tribal
families, water has become a privilege and not a right; the richest
democracy in the world has a duty to eliminate this water access gap,
once and for all. Providing this basic human right will unlock change
for Tribal communities for generations to come. This starts with
ensuring equitable and reliable access to government funding and
technical assistance, as outlined in both S. 2385 and H.R. 4746.
Sincerely,
The VesselTM Collective
DigDeep
Center for Indigenous Health
Community Engineering Corps
GreenLatinos
International Association of Plumbers and Mechanical Officials
Moonshot Missions
The Center for Water Security and Cooperation
US Water Alliance
Water For People
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Hon. Melanie Anne Egorin
Question 1. Last year this Committee heard testimony about capacity
needs within Tribal communities for water infrastructure deployment and
maintenance. We heard that Tribes need more resources--whether through
finding and applying for grants or through building technical expertise
to care for existing systems. How would the Indian Health Service (IHS)
use funds directed at providing technical assistance to build Tribal
capacity under S. 2385?
Answer. If S. 2385 became law, the Secretary would be authorized to
develop a new program to utilize the funds for ``the operation and
maintenance of water facilities serving Native communities''. This
program could be designed to ensure the funds would support the better
and timelier documentation of the operational challenges resulting from
failing infrastructure and earlier identification of solutions to
address these challenges. This earlier problem recognition could lead
to capital infrastructure solutions (e.g., interventions) that are less
expensive over the long run. Additionally, the funds could help ensure
the infrastructure built is operated in a way that comply with
regulations intended to protect public health and the environment for
tribal communities. However, the time provided in the bill for IHS to
develop such a program is severely limited. The current draft of the
bill would authorize $100,000,000 each fiscal year, likely starting in
the first fiscal year of the authorization. It would be extremely
difficult for the IHS to develop a methodology in collaboration with
tribes and to hire the necessary staff to implement that methodology. A
preferred approach would be to include language that provides time and
funding for IHS to develop the methodology and hire the additional
staff needed to support implementation.
Question 2. Under current law, the IHS is authorized to provide
water and sanitation services to ``Indian homes, communities, and
lands.'' 42 U.S.C. 2004a. Our understanding is that current IHS
interpretation requires matching funds to provide such services to
community structures such as schools, hospitals, nursing homes, post
offices--basically, public facilities that Tribal members use,
frequently on a daily basis, and are essential components of community
life. Tribes have frequently stated that they are unable to provide
those matching funds, and as a result, these community facilities don't
get connected to clean water service. This is particularly true in
Alaska. \1\ Please explain the purpose behind the IHS cost matching
policy referenced above.
---------------------------------------------------------------------------
\1\ Testimony of Valerie Nurr'araaluk Davidson, Senate Indian
Affairs Committee, March 24, 2021, available at https://
www.indian.senate.gov/wp-content/uploads/
Testimony%20of%20VDavidson%20ANTHC%20before%20SCIA%203-24-2021.pdf.
---------------------------------------------------------------------------
Answer. Section 7 of the Act of August 5, 1954 (42 U.S.C. 2004a)
and section 302 of the Indian Health Care Improvement Act (25 U.S.C.
1632(b)), authorize IHS to provide necessary water and sewer for
``Indian homes, communities, and lands[.]'' Under existing law, the
phrase ``Indian homes, communities, and lands'' is undefined. IHS has
interpreted this authorization, in conjunction with statutory
restrictions, as being related to the provision of services to American
Indians/Alaska Natives (AI/AN) and barring the use of Sanitation
Facilities Construction (SFC) project funds for commercial
establishments (generally) and facilities associated with non-Indians.
IHS policy reflects this interpretation by requiring Indian communities
(or others) to identify matching funds to be used in IHS-funded
projects to cover the cost of these ineligible facilities. These funds
are considered contributions to cover the pro-rata portion of the
project cost associated with serving ineligible users as described in
the Sanitation Deficiency System Guide. In many cases, including in
projects serving Alaska Native Villages, over the past five years the
ineligible costs averaged roughly 21 percent of the total project cost.
The current policy does not require a matching amount for costs
associated with serving eligible homes. However, current policy does
require the non-Indian home establishments contribute to the project to
cover their portion of the project costs (i.e. ineligible costs).
Question 2a. In light of the funding provided in the Bipartisan
Infrastructure Law for IHS Sanitation Facilities Construction Program
to address historical underfunding, is the IHS' current policy still
needed?
Answer. Yes, the Bipartisan Infrastructure Law was based on the
eligible costs as reported to the Congress at the end of fiscal year
2021. The report to the Congress does not include costs associated with
serving commercial, industrial, or agricultural establishments
including office buildings, nursing homes, health clinics, schools,
hospitals, and hospital quarters, which are considered as ineligible
costs and are not funded with SFC appropriated funds. These non-Indian
homes can be included in a project if they pay their own cost. As of
December 31, 2021, there were 1,513 projects, totaling $3.4 billion in
eligible costs and $735 million in ineligible costs. As of December 31,
2022, there were 1,369 projects, totaling $4.4 billion in eligible
costs, and $1.1 billion in ineligible costs. As of December 1, 2023,
there are 1,346 projects, totaling $4.7 billion in eligible costs, and
$1.1 billion in ineligible costs. The Bipartisan Infrastructure Law
does not provide sufficient funding to address the current eligible
costs let alone the ineligible cost portion of the Sanitation
Deficiency System projects reported to the Congress.
Question 3. Your written testimony states that HHS has interpreted
the existing statutory term ``Indian homes, communities, and lands'' to
bar the use of IHS funding for ``commercial establishments and
facilities associated with non-Indians,'' and expresses concern that S.
2385 ``is inconsistent with the current IHS policy and potentially
inconsistent with statutory mandates regarding the provision of
services by IHS to non-Indians.'' The essential community structures
described in the legislation include schools, hospitals, nursing homes,
teachers' homes, Tribal offices, and post offices, not commercial
enterprises. Could this be clarified in the legislation by, for
example, specifically excluding ``commercial establishments'' and
allowing for some incidental benefits to a small number of non-Indian
residents?
Answer. The proposed change would still conflict with IHS policy,
as IHS has interpreted the funding authorized under section 7 of the
Act of August 5, 1954 (42 U.S.C. 2004a) and section 302 of the Indian
Health Care Improvement Act (25 U.S.C. 1632(b)) as intending to provide
sanitation facilities for tribal homes. Under IHS policy other non-
tribal homes and buildings served by the project are required to
provide funding to support the pro-rata cost of the service. There may
be funding available from other sources depending on the structure. For
example, as explained in the Criteria for the Sanitation Facilities
Construction Program, June 1999, Chapter 4, page 3, Health Care
Facilities Construction (HCFC) funds are for the construction of new
hospitals, health centers, staff quarters, and additional space to
existing facilities. The cost to serve these types of facilities with
sanitation infrastructure would be taken from the HCFC account.
Question 4. In addition to the Native Hawaiian Health Scholarship
program, what else is the Department of Health and Human Services (HHS)
and the Health Resources and Services Administration (HRSA) doing to
improve recruitment and retention of medical providers to serve in
Native Hawaiian Health Care Systems?
Answer. In addition to the Native Hawaiian Health Scholarship
program, HHS, through HRSA, administers the Native Hawaiian Health Care
Program. This program improves the health of Native Hawaiians by making
health education, health promotion, and disease prevention services
available through a combination of outreach, referral, and linkage
mechanisms, and provided medical and enabling services to over 6,800
people in 2022. Supporting the recruitment and placement of Native
Hawaiian Health Scholarship recipients is a key activity in the Native
Hawaiian Health Care Systems.
HRSA also supports the Native Hawaiian Center of Excellence at the
University of Hawai`i, which provides individualized premedical
advising, workshops, and Medical College Admission Test preparation
resources to Native Hawaiian Students. The Center of Excellence has a
mentoring and academic support program for current Native Hawaiian
medical students.
Furthermore, HRSA's Area Health Education Centers (AHEC) Program
develops and enhances education and training networks within
communities, academic institutions, and community-based organizations.
The Hawai`i/Pacific Basin AHEC has formal partnerships with a variety
of organizations across the state, including Papa Ola Lokahi and the
Waimanalo Community Health Center, to collaborate on planning health
workforce assessments across the region and assist with placing health
professions students in rural areas of Hawaii. These partnerships focus
on promoting the Native Hawaiian Health Scholarship Program and
providing continuing education.
Question 4a. Could the tools proposed in S. 3022 be applied to the
Native Hawaiian Health Care Systems? How?
Answer. In regards to HRSA's Native Hawaiian Health Care Systems
Program, Native Hawaiian Health Centers receive funding (through the
HRSA Health Center Program appropriation) to provide medical and
enabling services to Native Hawaiians. Native Hawaiian Health Centers
improve the health status of Native Hawaiians by providing access to
health education, health promotion, and disease prevention services.
Services provided include nutrition programs, screening and control of
hypertension and diabetes, immunizations, and basic primary care
services. The proposed bill seeks to allow Indian Health Service
scholarship and loan recipients to fulfill service obligations through
half-time clinical practice. HHS is committed to strengthening the
health workforce and connecting skilled health care providers to
communities in need. HHS would be happy to take another look at this
legislation with a focus on Native Hawaiian Health Care Systems if the
Committee would like to request additional technical assistance.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Hon. Manuel Heart
Question 1. How can the funds and programs proposed in S. 2385
supplement existing resources and address community need? Can you
provide a couple of specific examples?
Answer. Our White Mesa Ute Community in Utah is adjacent to the
only remaining operating uranium mill in the United States. Stored at
the mill are thousands of acre feet of toxic radioactive waste that are
anticipated to be there forever. The White Mesa Community depends on
groundwater resources buried deep in the Navajo aquifer for its
municipal (domestic) needs. The groundwater for the community supply is
of poor quality. The Ute Mountain Ute Tribe has long expressed concern
that the uranium mill operations (in particular, documented management
practices that have allowed continued contamination of surface
resources, groundwater resources, and surface water resources) pose
serious threats to the health of the surrounding land and waters, to
the natural and cultural resources within and around the White Mesa
community, and to the health and welfare of its Tribal members and
their future generations. Members of the Tribe have experienced an
alarming increase in health problems in recent years, including
increased levels of cancer.
The additional funding for technical assistance that would be
authorized under S. 2385 for USDA, IHS, and the Bureau of Reclamation
could provide the Tribe with the necessary help to assess necessary and
appropriate upgrades for the White Mesa water treatment system. Such an
assessment could determine whether current supplies are contaminated
and provide recommendations for upgrades that will remove existing
contaminants and guard against future contamination. Such technical
assistance funding could also allow the Tribe to commission design and
engineering plans for any recommended upgrade. The funding for the USDA
rural development grant and loan program could help the Tribe bring its
existing treatment system up to current practice standards. Currently,
Federal funding for water system technical assistance and upgrades is
severely limited, and none has been made available to the Tribe for
this purpose.
In our Towaoc Community in Colorado, the primary water line that
supplies water from the Bureau of Reclamation Dolores Project to 600
residences is more than 30 years old. The line is ductile iron and is
vulnerable to breaks due to the shifting and saline geology and a lack
of adequate cathodic protection. The Tribe experiences multiple such
breaks every year, which cause temporary interruption of water
deliveries to the Community and exacerbate the potential for water
quality contamination. Each repair of the ductile iron line costs the
Tribe $50,000 +/-.
The Tribe has replaced 2.7 miles of ductile iron pipe with 16-18"
HDPE (High Density Polyethylene Pipe) which requires no cathodic
protection and has a useful life of 100 years. There are another 19
miles of ductile iron pipe that needs to be replaced. The Tribally-
owned WCA Construction, LLC is recognized for expertise in HDPE pipe
installation. The 2.7 miles of HDPE pipe has been installed with
funding from USDA at the rate of one mile per year. At that rate, it
will take another 19 years to replace the entire line, with a high
probability of increases in costly, contaminating and service
interrupting breaks.
The Tribe is preparing an application for the USDA funding that
would be provided by S. 2385 if it is enacted to plan and design
replacement of the entire remaining 19 miles of pipe to be followed by
an application for construction funding. If construction funding is
available, the entire pipeline could be replaced by WCA Construction,
LLC in 3 years, including installation of isolation valves and SCADA
improvements. The result would be a problem free domestic pipeline to
the Towaoc community with a life of 100 years.
There is currently no Federal funding available to assist with
operation and maintenance of water systems on Tribal reservations. As
the above description of the ductile iron pipe illustrates, lack of
ability to maintain an appropriate level of O&M makes the entire system
more vulnerable. Lack of O&M assistance means that costs of repair and
replacement will compound in coming years. S. 2385 would authorize and
direct IHS to provide funding for O&M assistance to needy Tribes.
In addition to equipment and facility challenges, the Tribe has
considerable difficulty recruiting and retaining qualified facility
operators. Staff turnover is prevalent and competitive salary
opportunities are not usually available. Obtaining a certification at
the appropriate level requires years of experience in addition to
successful course and testing completion. With a limited amount of STEM
guided career paths in the Tribal population, the chances of having a
Tribal member get the education and experience to be an operator is
low. To keep an employee with these qualifications by virtue of salary
alone is not possible. The combination of these makes it tough to keep
operators.
In our smaller Utah community, we have a treatment system, but we
do not have a certified operator. S. 2385 and its authorization of O&M
assistance funding could help the Tribe to operate and maintain the
water system in White Mesa.