[Senate Hearing 118-532]
[From the U.S. Government Publishing Office]
S. Hrg. 118-532
S. 4370 AND S. 4505
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HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
JULY 25, 2024
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
58-021 PDF WASHINGTON : 2025
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
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Page
Hearing held on July 25, 2024.................................... 1
Statement of Senator Heinrich.................................... 3
Statement of Senator Lujan....................................... 4
Statement of Senator Murkowski................................... 2
Statement of Senator Schatz...................................... 1
Witnesses
Crockett, John, Associate Deputy Chief for State, Private, and
Tribal Forestry, U.S. Department of Agriculture................ 10
Prepared statement........................................... 12
Goodluck, Tracy Canard, Senior Advisor to the Assistant
Secretary--Indian Affairs, U.S. Department of the Interior..... 5
Prepared statement........................................... 6
Padilla, Hon. Thora, President, Mescalero Apache Tribe........... 18
Prepared statement........................................... 20
Phillips, Jr., Hon. Larry M., Governor, Pueblo of Ohkay Owingeh.. 14
Prepared statement........................................... 16
Mallott, Benjamin, President-Elect, Alaska Federation of Natives. 24
Prepared statement........................................... 25
Appendix
Climate and Wildfire Institute and The Stewardship Project,
prepared statement............................................. 35
Response to written questions submitted by Hon. Brian Schatz to:
John Crockett................................................ 36
Tracy Canard Goodluck........................................ 37
Benjamin Mallott............................................. 39
Hon. Thora Padilla........................................... 41
Trujillo, Tanya, New Mexico Deputy State Engineer, prepared
statement...................................................... 35
S. 4370 AND S. 4505
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THURSDAY, JULY 25, 2024
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:12 p.m. in room
628, Dirksen Senate Office Building, Hon. Brian Schatz,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BRIAN SCHATZ,
U.S. SENATOR FROM HAWAII
The Chairman. Good afternoon. Today we will receive
testimony on two bills: S. 4370, Tribal Forest Protection Act
Amendments of 2024; and S. 4505, Ohkay Owingeh Rio Chama Water
Rights Settlement Act of 2024.
S. 4370, Vice Chair Murkowski's bill, would amend the
Tribal Forest Protection Act of 2004 by expanding eligibility
for tribes to take on certain forest protection and restoration
activities on Federal public lands from the Forest Service and
the BLM. It would allow tribes to use TFPA funding to conduct
these activities on their own tribal land and authorize Alaska
Native corporations to manage Federal public lands and lands
they own pursuant to the same authorities.
S. 4505, Senator Heinrich's bill, would resolve the claims
of the Ohkay Owingeh Pueblo water rights in the Rio Chama
Stream System in New Mexico. The bill establishes an interest-
bearing trust fund to implement the negotiated settlement
between the Pueblo and the United States and other interested
parties.
S. 4505 is one of several Indian water rights settlement
bills introduced and referred to the Committee over the last
two weeks. Recognizing that our Committee plays a key role in
enacting such settlements, each deserves our keen consideration
and due diligence.
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.
Vice Chair Murkowski.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman.
I want to focus my comments this afternoon on S. 4370, this
is the Tribal Forest Protection Act Amendments of 2024. This
would modify and improve the Tribal Forest Protection Act of
2004 to promote greater indigenous stewardship of Federal and
Indian forest lands and range lands.
I have introduced this because tribal lands and resources
have become increasingly vulnerable to wildfire, to insect
infestatation, other natural hazards that originate on Federal
lands. So our legislation is intended to put tribes in the lead
by strengthening the role of Native communiteis in Federal land
managememnt so they can reduce threats to their own resources.
I believe this measure is timely, it is well warranted.
Thanks to the 2018 Farm Bill, projects proposed under the TFPA
may be carried out through ISDEA funding agreements. We are
seeing more interest in this underutilized tool.
TFPA empowers tribes to harness indigenous knowledge and
western science when conducting forest management projects,
which of course are proven to reduce wildfire severity and
restore forest ecosystems.
But in the 20 years since TFPA was first enacted, wildfires
are burning faster, hotter, and longer. And it is compounded by
chronic mismanagement of forest lands by the Fedreal
Government.
According to the Intertribal Timber Council, nearly half a
million acres of tribal lands are now consumed by fire each
year. Too often these fires ignite on remote Federal lands and
spread to tribal lands, endangering Native people, property,
infrastructure, and cultural resources.
TFPA does not currently allow tribes to conduct forest
management activities on Federal land unless those lands are
immediately adjacent to Indian lands. That limitation
effectively blocks tribes from managing larger forest
landscapes that they have cared for, and been physically and
spiritually connected to for generations.
Obviously, fire doesn't follow borders drawn on a map or
any other strictures of law. So my bill would give tribes the
flexibility to plan and implement forest health and management
projects on Federal lands beyond those lands immediately
adjacent to the reservation boundary.
The legislation also includes a critical fix to TFPA which
currently omits lands owned by Alaska Native villages and
regional corporations. Without this fix, Alaska's ANCs, which
own more than 44 million acres of land, are practically
excluded from participation under the TFPA statute. This is not
acceptable. The forested lands owned by ANCs are in every
aspect Indian forest land. We have a unique legal framework in
Alaska that governs Alaska Native communities, the Alaska
Native Claims Settlement Act. But we should not be
disadvantaged by it.
So if we enact this, S. 4370 would allow Native communities
in Alaska to apply their indigenous knowledge and skills to
Federal forest land and to the 44 million acres of ANCSA lands
that are currently off limits to tribal management under TFPA.
So I am looking forward to the testimony from our
witnesses, including the Department of Interior, which has
offered very positive words and outright support for it. I am
also looking forward to welcoming my friend, Ben Mallott, who
has traveled to be here from Alaska.
The Chairman. Thank you, Vice Chair Murkowski.
We will now turn to the witnesses. We are happy to have
Tracy Canard Goodluck, the Senior Advisor to the Asistant
Secretary for Indian Affars at the Department of Interior; Mr.
John Crockett, Associate Deputy Chief for State, Private, and
Tribal Forestry at the Department of Agriculture. Senator
Heinrich, if you would like to introduce one of our witnesses
and make any opening statement, you would be welcome to do so.
STATEMENT OF HON. MARTIN HEINRICH,
U.S. SENATOR FROM NEW MEXICO
Senator Heinrich. Thank you, Chairman Schatz, and Vice
Chair Murkowski, for holding this hearing on the Ohkay Owingeh
Rio Chama Water Rights Settlement Act. I also want to express
my enthusiasm for the Vice Chair's Veterinary Servcies bill,
and look forward to working with you on that.
I am pleased today to iontroduce Larry Phillips, Jr., the
Governor of Ohkay Owingeh Pueblo who is here to provide
testimony today. Governor Phillips was born and raised in Ohkay
Owingeh and has served his pueblo in a variety of roles over
the last three decades. He has led the pueblo's effort in
advancing their water settlement since 2012 when he became the
director of Ohkay Owingeh's natural resource division. He has
made this settlement a top priority since his term as governor
began in 2022, and I look forward to continuing our partnership
to get this water settlement over the finish line.
I also want to say hello to Thora Padilla from Mescalero
Apache, who is going to be joining you virtually today on the
Forestry Bill. She knows her stuff, and she is all too familiar
with recent wildfires like the Salt Fire.
The Ohkay Owingeh Rio Chama Water Rights Settlement Act
would settle the water rights of Ohkay Owingeh in the Rio Chama
stream system and provide the resources necessary to restore
the bosque or riparian forest on the pueblo's land.
This legislation would implement the settlement agreement
that has been carefully negotiated between Ohkay Owingeh, the
State of New Mexico, neighboring water users and the United
States. I want to thank all of the parties for their tireless
work in reaching a settlement for this basin.
For more than a century, the United States has failed to
protect the water rights of Ohkay Owingeh and other tribes. As
a result, the pueblo suffered from a lack of water for
families, for farms, for businesses, and for their bosque. It
is hard to bring jobs and economic development to any community
if you can't have reliable, guaranteed water.
Pueblo members' traditional ways of life have suffered as
the bosque has dried and native plants, fish, and wildlife have
declined. The failuare of the United Statse to ensure that
Ohkay Owingeh could use the water that they have always owned
has reverberated through generations. It has a direct impact on
the wellbeing of pueblo members today and it is time we make
this right.
This legislation would fully settle the Ohkay Owingeh's
claim to the Rio Chama Basin. It would provide resources for
the pueblo to restore the Rio Chama Bosque, a critical
ecosystem that not only protects the Rio Chama but also
provides traditional food and medicinal resources.
The settlement will provide critically needed funding for
water infrastructure to develop and distribute new water to
pueblo homes and businesses. It will make it possible for Ohkay
Owingeh to finally use the water that they have owned for more
than a century
In recent decades Congress, working through this very
Committee, has made real progress on making tribes whole for
the water that has always been theirs. We have an opportunity
to take yet another step forward on that by approving this
settlement.
Thank you to the Committee and all your members for your
consideration today and I would yield back the remainder of my
time, Chairman.
The Chairman. Thank you very much, Senator Heinrich.
Senator Lujan, would you like to introduce another New
Mexico witness?
STATEMENT OF HON. BEN RAY LUJAN,
U.S. SENATOR FROM NEW MEXICO
Senator Lujan. Thank you very much, Mr. Chairman, Vice
Chair Murkowski as well, for holding this important legislative
hearing today.
Before I introduce President Padilla, I also want to
recognize an incredible leader from New Mexico, Governor Larry
Phillips, to you, to your team for being here today. As you
share with us, Governor, on behalf of all of the people from
Ohkay Owingeh and from the communities as well, our elders and
ancestors, it is an honor to have you before us today. It is
good to see you, sir.
Today, Mr. Chairman, I have the honor of introducing
President Thora Padilla of the Mescalero Apache as a witness
for today's hearing. She has served as president since January
12th, 2024. Now, President Padilla previously worked for the
tribe as director for the Division of Resource Management and
Protection, a program she helped establish and develop. She
also previously worked at the Bureau of Indian Affairs
Mescalero Agency as a timber sale forester for eight years.
President Padilla graduated from New Mexico State
University in 1985 with a Bachelor of Science in agriculture
and a major in horticulture and minors in botany and fine art.
In her short time as president, President Padilla has
already demonstrated her leadership and dedication to the
Mescalero Apache and the State of New Mexico. Last month, fires
devastated areas of southeastern New Mexico, only to be
followed by flood. These wildfires upended the lives of far too
many New Mexicans, destroying thousands of homes and businesses
and disrupting livelihoods.
During these turbulent times in our communities, President
Padilla was a leader in the Mescalero Apache, Riudoso, and
Roswell communities. I am proud to work with her back home, and
I am proud to have her here in Washington to make things better
for our tribal communiteis, for our State and for our Country.
I look forward to her testimony.
I yield back.
The Chairman. Vice Chair Murkowski, would you like to
introduce your Alaska witness?
Senator Murkowski. I would be honored to do so. It is a
pleasure to be able to welcome back to the Committee my friend,
Mr. Ben Mallott. Ben is the newly announced president-elect for
the Alaska Federation of Natives, AFN. This Committee knows the
good workings of AFN over the years, the oldest and largest
statewide Native membership organization in our State.
Ben has dedicated his life, really dedicated his life to
the interests of Alaska, and to Alaska Natives. He is very
familiar with these issues that are in front of us. He has
worked in this building before, and I have had the oproutnity
to work side by side with him before he returned back to the
State.
It is always good to see you, and I am truly honored today
that you are here to provide input to the Committee, your
expertise, but really delighted that you are going to be
assuming this very significant role at AFN.
Welcome back.
The Chairman. Well, it is time for your testimony. I want
to remind the witnesses that your full written testimony will
be made part of the official hearing record. Please keep your
statements to no more than five minutes, so that we have time
for questions.
Ms. Goodluck, please proceed.
STATEMENT OF TRACY CANARD GOODLUCK, SENIOR ADVISOR TO THE
ASSISTANT SECRETARY--INDIAN AFFAIRS, U.S.
DEPARTMENT OF THE INTERIOR
Ms. Goodluck. Thank you. Shekoli, good afternoon, Chairman
Schatz, Vice Chairman Murkowski, and members of the Committee.
My name is Tracy Canard Goodluck. I am a member of the Oneida
Nation of Wisconsin, and I am also Mvskoke Creek of
Thlopthlocco Tribal Town.
I serve as Senior Advisor to the Assistant Secretary for
Indian Affairs at the Department of the Interior. Thank you for
the opportunity to present the department's views on S. 4505
and S. 4370. These bills highlight the United States' trust
obligation to protect the continued existence of Indian tribes.
This means ensuring that each tribe has a protected homeland
where its citizens can maintain their tribal existence and way
of life.
The Department is also committed to improving the
stewardship of our Nation's Federal forest lands and water by
strengthening the role of tribal communities in Federal land
management, honoring tribal sovereignty and supporting the
priorities of tribal nations.
With respect to tribal forestry, Congress declared in the
National Indian Forest Resource Management Act that the United
States has a trust responsibility toward Indian forest lands.
The Tribal Forest Protection Act allows for tribes to manage
Fedreal forest and range lands, to mitigate risks to tribal
forest land resources. The TFPA and proposed amendments here
are also in line with the joint Secretaries' order on co-
management.
The Department supports S. 4370 as it aligns with important
Administration priorities. S. 4370 would amend the TFPA to
include ANCSA lands in the definition of tribal forests and
range lands.
S. 4370 would also remove the requirements that TFPA
activities occur on land bordering or adjacent to tribal lands,
and extend application of TFPA to activities occurring on
Indian forests or range land. These changes would provide
parity to Alaska Natives and allow for cross-jurisdictional
work to protect the health of both Federal and tribal lands.
We would like to work with the sponsor and Committee to
clarify the role of the BIA with the proposed expansion of TFPA
projects on tribal lands.
The Department is also pleased to support S. 4505. S. 4505
would approve and provide authorizations to carry out the
settlement of all water rights claims of the Ohkay Owingeh in
the Rio Chama River Basin. Since time immemorial, Ohkay Owingeh
has made use of the water in the Rio Chama Basin.
However, Rio Chama water supply available to Ohkay Owingeh
has been reduced over time by diversions by neighboring non-
Indian water users. A portion of Ohkay Owingeh's lands like
within the bosque, or forested habitat, along the Rio Chama and
Rio Grande, which is of great historical and cultural
significance to Ohkay Owingeh people.
The bosque areas within Ohkay Owingeh's lands were altered
as a result of the flood control and irrigation projects
constructed by the United States in the mid-1900s. Recent
effects of climate change are exacerbating these effects and
surface water supplies are dwindling. Ohkay Owingeh seeks
funding as part of the proposed settlement to remedy the
damages to its lands within these bosque areas.
They also plan to develop Ohkay Owingeh's water resources
for various uses, including domestic and municipal purposes for
current and future populations. S. 4505 is designed to meet
Ohkay Owingeh's needs for water by providing a trust fund that
will allow Ohkay Owingeh to make decisions regarding how, when,
and where to develop those projects. And S. 4505 would also
allow Ohkay Owingeh to restore and protect its culturally
important bosque lands.
This approach is consistent with tribal sovereignty and
self-determination. It is also consistent with our trust
responsibilities and will help to ensure that Ohkay Owingeh can
maintain its way of life.
Thank you for the opportunity to provide the department's
views on these bills, and I look forward to answering any
questions you may have.
[The prepared statement of Ms. Goodluck follows:]
Prepared Statement of Tracy Canard Goodluck, Senior Advisor to the
Assistant Secretary--Indian Affairs, U.S. Department of the Interior
Chairman Schatz, Vice Chairman Murkowski, and Members of the
Committee, thank you for the opportunity to present testimony on S.
4370, Tribal Forest Protection Act Amendments Act, and S. 4505, the
Ohkay Owingeh Rio Chama Water Rights Settlement Act of 2024.
S. 4370, Tribal Forest Protection Act Amendments Act
The Tribal Forest Protection Act (TFPA) allows federally recognized
Tribes to propose forest or rangeland projects to be conducted on lands
managed by the Bureau of Land Management (BLM) and U.S. Department of
Agriculture (USDA) Forest Service to reduce threats to adjacent Tribal
lands, trust resources, and values. S. 4370 would amend the TFPA to
provide for participation of Alaska Native Corporations (ANC), remove
the requirement that projects to achieve land management goals occur on
lands bordering or adjacent to Tribal lands, and extend application of
TFPA to projects occurring on Indian forest land or rangeland.
On November 15, 2021, Secretary of the Interior Haaland and
Secretary of Agriculture Vilsack issued Secretary's Order 3403, Joint
Secretarial Order on Fulfilling the Trust Responsibility to Indian
Tribes in the Stewardship of Federal Lands and Waters (S.O. 3403,
Order). At the Tribal Nations Summit on November 22, 2022, Secretary of
Commerce Raimondo joined S.O. 3403.
S.O. 3403 affirms the trust relationship between the United States
and Tribes and acknowledges that the United States would benefit from
the land management expertise and practices Tribal Nations have
developed over centuries. The Order is also a commitment ``to ensure
that Tribal governments play an integral role in decisionmaking related
to the management of [F]ederal lands and waters through consultation,
capacity building, and other means consistent with applicable
authority.''
The Department of the Interior (Department) recognizes that forest
and ecosystem health does not stop at the border of Tribal lands. The
Department is committed to improving the stewardship of our Nation's
Federal forest lands by strengthening the role of Tribal communities in
Federal land management, honoring Tribal sovereignty, and supporting
the priorities of Tribal Nations. S. 4370 aligns with these important
Administration priorities, and the Department supports the bill.
The Department defers to the USDA regarding impacts to lands
managed by the USDA Forest Service.
Background
The TFPA authorizes the Department to enter into a contract or
agreement with Tribes to carry out projects to protect Indian forest
land or rangeland, including proposals to restore Federal land that
borders on or is adjacent to Indian forest land or rangeland. The
statute defines ``Indian forest land or rangeland'' as ``land that . .
. is held in trust by, or with a restriction against alienation by, the
United States for an Indian tribe or a member of an Indian tribe,'' and
is ``forest land . . . ; or . . . has a cover of grasses, brush, or any
similar vegetation; or . . . formerly had a forest cover or vegetative
cover that is capable of restoration.'' Covered projects must meet
certain criteria, including that the BLM-managed lands involved must be
adjacent to the Tribe's trust or restricted fee lands; those lands must
be under the jurisdiction of the Tribe; pose a fire, disease, or other
threat to those trust lands or be in need of land restoration
activities; and present or involve a feature or circumstance unique to
that Tribe (including treaty rights or biological, archaeological,
historical, or cultural circumstances). The TFPA requires that the
Department respond to such projects within 120 days of receiving a
proposal. If the Department denies a Tribe's request to enter into an
agreement, the TFPA requires the agency to provide the Tribe with an
explanation for its decision, and to propose consultation with the
Tribe. Under the TFPA, Tribes and the Department have engaged in
mutually beneficial work to improve forest and grassland conditions and
protect Tribal lands and communities from risks.
Projects proposed by a Tribe under the TFPA may be carried out
through an Indian Self- Determination and Education Assistance Act
(ISDEAA) funding agreement. Like the ISDEAA, the TFPA may extend to
ANCs as well as federally recognized Tribes-although the reference to
trust or restricted lands, and the requirement that the lands be under
the jurisdiction of the Tribe, means that ANCs are practically excluded
from participation under the statute.
Analysis
S. 4370 would expand the definition of ``Indian forest land or
rangeland'' to include land in the state of Alaska that is held by an
ANC under the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et.
seq.) or has ``a special geographic, historical, or cultural
significance to the Indian tribe.'' The bill also removes the
requirement that projects occur on Federal lands managed by the BLM or
the USDA Forest Service that are adjacent to Tribal lands. Rather, S.
4370 requires Federal lands present or involve a special geographic,
historic, or cultural significance to the Tribe. Expanding the
definition of ``Indian forest land or rangeland'' provides clarity for
the use of TFPA by ANCs. Further, removing the requirement that
projects occur on Federal lands bordering or adjacent to Tribal lands
removes ambiguity pertaining to proximity. The BLM supports these
amendments to reduce the threats to Tribal forest lands and rangeland,
trust resources, and values.
S. 4370 also expands the lands on which Tribes may carry out land
management activities to include Indian forest land or rangeland;
requires the Department to submit to Congress a report describing the
Tribal requests received and agreements or contracts that have been
entered into; and authorizes the appropriation of $15 million per year
from 2025 through 2030 to carry out the Act. The TFPA has been
successfully used to address management of lands administered by the
BLM and USDA Forest Service that are a priority to Tribes due to their
associated risks to Tribal forest land resources. The Department notes
that without more specificity in the proposed bill's definition, there
is a risk that expanding the TFPA to include Tribal lands could
potentially result in duplicate efforts and the comingling of trustee
obligations by the Bureau of Indian Affairs (BIA), USDA Forest Service,
and the BLM, as the BIA administers programs including forest
management and wildfire fuels reduction on lands held in trust for
Tribes. However, in any format, this proposal would further Tribal
ability to protect and restore forest lands across boundaries as
threats to and the overall health of these lands do not stop at the
boundaries of Tribal and Federal lands.
S. 4370 could allow for a TFPA project to occur in part or in whole
on trust lands managed under the authority of the Bureau of Indian
Affairs (BIA). We would welcome the opportunity to work with the
Sponsor and the Committee on revisions to clearly define the role of
the BIA for such projects. Finally, the Department would welcome the
opportunity to work with the Sponsor on revisions that clarify agency
financial responsibility for cross-jurisdictional projects.
The Department would welcome the opportunity to work with the
Sponsor and the Committee to ensure that the expansion of the TFPA to
apply to Tribal lands results in complementary, rather than
duplicative, efforts.
S. 4505, A bill to approve the settlement of water rights claims of
Ohkay Owingeh in the Rio Chama Stream System, to restore the
Bosque on Pueblo Land in the State of New Mexico, and for other
purposes
I. Introduction
At the core of the United States' trust and treaty obligations is
our responsibility to ensure that Indian Tribes have the right to
continue to exist in their homelands. Everyone should understand that
water is essential to meet this obligation. Without access to water in
their homelands, Tribes cannot remain in their homelands, and we cannot
fulfill our most solemn obligation to American Indian and Alaska Native
people.
The Biden Administration recognizes that water is a sacred and
valuable resource for Tribal Nations and that long-standing water
crises continue to undermine public health and economic development in
Indian Country. This Administration strongly supports the resolution of
Indian water rights claims through negotiated settlements. Indian water
settlements help to ensure that Tribal Nations have safe, reliable
water supplies; improve environmental and health concerns on
reservations; enable economic growth; promote Tribal sovereignty and
self-sufficiency; and help advance the United States' trust
relationship with Tribes. At the same time, water rights settlements
have the potential to end decades of controversy and contention among
Tribal Nations and neighboring communities and promote cooperation in
the management of water resources.
Indian water rights settlements play a pivotal role in this
Administration's commitment to putting equity at the center of
everything we do to improve the lives of everyday people-including
Tribal Nations. We have a clear charge from President Biden and
Secretary Haaland to improve water access and water quality on Tribal
lands. Access to water is fundamental to human existence, economic
development, and the future of communities-especially Tribal
communities.
To that end, the Biden Administration's policy on negotiated Indian
water settlements continues to be based on the following principles:
the United States will participate in settlements consistent with its
legal and moral trust responsibilities to Tribal Nations; Tribes should
receive equivalent benefits for rights, which they, and the United
States as trustee, may release as part of the settlement; Tribes should
realize value from confirmed water rights resulting from a settlement;
and settlements should contain appropriate cost-sharing proportionate
to the benefits received by all parties benefiting from the settlement.
In addition, settlements should provide finality and certainty to all
parties involved.
Congressional enactment of these settlements should be considered
within the context of all Tribal priorities and the availability of all
resources. That is why the Administration encourages Congress to
consider mandatory funding for this and other pending Indian water
rights settlements, which was also requested in the 2025 President's
Budget, included in the enacted Bipartisan Infrastructure Law, and
already proposed in the bill we are discussing today.
S. 4505 would approve and provide authorizations to carry out the
settlement of all water rights claims of the Ohkay Owingeh in the Rio
Chama basin in New Mexico.
II. Background
A. Historical Context
Like other Pueblos in New Mexico, Ohkay Owingeh were agricultural
people living in established villages when the Spanish explorers first
came to New Mexico. Before Ohkay Owingeh's lands became part of the
United States, they fell under the jurisdiction first of Spain, and
later of Mexico, both of which recognized and protected the rights of
the Pueblos to use water. When the United States asserted its
sovereignty over Pueblo lands and what is now the State of New Mexico,
it did so under the terms of the Treaty of Guadalupe Hidalgo, which
protected rights recognized by prior sovereigns, including Ohkay
Owingeh's rights.
B. Ohkay Owingeh and the Rio Chama
The Rio Chama, located in north-central New Mexico and to the
northwest of Albuquerque, is a major tributary of the Rio Grande. The
river originates in Colorado, just above the New Mexico border, and
runs about 130 miles to its confluence with the Rio Grande. Ohkay
Owingeh, located 28 miles north of Santa Fe, has approximately 13,244
acres in the Rio Chama, Rio Grande, and Rio Santa Cruz basins. Ohkay
Owingeh has approximately 2,880 enrolled members, of which about 2,205
reside on Ohkay Owingeh lands.
Ohkay Owingeh is located in an arid region of New Mexico, and
drought is a common occurrence that has impacted, and continues to
impact, Ohkay Owingeh lands. Since time immemorial, Ohkay Owingeh has
made use of the water in the Rio Chama basin. However, the supply of
water in the Rio Chama available to Ohkay Owingeh has been reduced over
time by diversions by neighboring non-Indian water users. Consequently,
Ohkay Owingeh is facing water shortages that impact its ability to
provide sustainable water for its current and future water needs.
Additionally, a portion of Ohkay Owingeh's lands lie within the
``bosque,'' or forested habitat, along the Rio Chama and Rio Grande,
which is of great historical and cultural significance to Ohkay
Owingeh. The bosque areas within Ohkay Owingeh's lands were altered as
a result of flood control and irrigation projects constructed by the
United States on both the Rio Chama and Rio Grande in the mid-1900s.
Recent effects of global warming and climate change are exacerbating
these effects and surface water supplies are dwindling. Ohkay Owingeh
seeks funding as part of the proposed settlement to remedy the damage
to its lands that lie within these bosque areas and to also develop
Ohkay Owingeh's water resources for various uses, including domestic
and municipal purposes for current and future population.
In the late 1940s, a general stream adjudication of the Rio Chama
was initiated in New Mexico state court and was eventually removed to
Federal District Court in 1969. Negotiations regarding potential
settlement of Ohkay Owingeh's water rights claims have been ongoing
since 2015, when the United States established a negotiation team.
III. Proposed Ohkay Owingeh Settlement Legislation
S. 4505 would resolve all of Ohkay Owingeh's water rights claims in
the Rio Chama basin in New Mexico; ratify and confirm the water rights
settlement agreement signed in 2023 by Ohkay Owingeh, the State of New
Mexico, and non-Indian water users; authorize the Secretary of the
Interior to sign the settlement agreement; and provide funding to
implement the settlement.
S. 4505 would ratify and confirm Ohkay Owingeh's water rights to
approximately 1,756 acrefeet per (AFY) from surface water and
groundwater sources. These amounts include 771 AFY of future
groundwater use for economic development and an important right to 250
AFY of water to provide for bosque health and restoration on Ohkay
Owingeh lands, as well as water to continue irrigated farming in the
Rio Chama basin.
S. 4505 would also protect non-Indian water users, as Ohkay Owingeh
would not make priority calls for its senior rights against other
settlement parties, owners of domestic wells and livestock rights, and
any non-signatory water users who cooperate in shortage sharing. In
addition, Ohkay Owingeh would promulgate a water code, which would
govern permitting of uses of its water; provide processes for protests
by parties affected by Ohkay Owingeh permitting decisions; and ensure
that water use under an Ohkay Owingeh permit would not impair existing
surface and groundwater rights.
Finally, S. 4505 would establish a trust fund totaling $745
million, to be indexed, that Ohkay Owingeh could use to develop water
infrastructure as it determines necessary and on its own timeframe.
Monies in the fund could be used for:
1) Planning, permitting, designing, engineering, constructing,
reconstructing, replacing, rehabilitating, operating, or
repairing water production, treatment, or delivery
infrastructure, including for domestic and municipal supply or
wastewater infrastructure;
2) Planning, permitting, designing, engineering, constructing,
reconstructing, replacing, rehabilitating, operating, or
repairing water production, treatment, or delivery
infrastructure, acquisition of water, or on-farm improvements
for irrigation, livestock, and support of agriculture;
3) Planning, permitting, designing, engineering, constructing,
reconstructing, replacing, rehabilitating, operating,
monitoring, or other measures for watershed and endangered
species habitat protection, bosque restoration or improvement
(including any required cost shares for and allowable
contributions to a Federal project or program), land and water
rights acquisition, water-related Ohkay Owingeh community
welfare and economic development, and costs relating to
implementation of the settlement agreement;
4) The management and administration of water rights; and
5) Ensuring environmental compliance for projects developed
with settlement funds. The State of New Mexico would contribute
$131 million to provide for benefits to non-Indian water users,
including $500,000 for a fund to mitigate impairment to non-
Indian domestic and livestock well users resulting from new or
changed water uses by Ohkay Owingeh.
IV. Department of the Interior Position on S. 4505
The Department is pleased to support S. 4505. This bill is the
result of multiple decades of litigation and nearly a decade of good-
faith negotiations to reach consensus on key issues. S. 4505 is
designed to meet Ohkay Owingeh's current and long-term needs for water
by providing a trust fund to be used by Ohkay Owingeh according to its
needs and its own decisions. Rather than committing Ohkay Owingeh or
the United States to construct specific water infrastructure projects,
the bill would allow Ohkay Owingeh to make decisions regarding how,
when, and where to develop water infrastructure. S. 4505 would also
allow Ohkay Owingeh to restore and protect its culturally important
bosque lands. This approach to settlement is consistent with Tribal
sovereignty and self-determination, and with our trust
responsibilities, and will help to ensure that Ohkay Owingeh can
maintain its way of life.
The Chairman. Thank you very much.
Mr. Crockett, please proceed.
STATEMENT OF JOHN CROCKETT, ASSOCIATE DEPUTY CHIEF FOR STATE,
PRIVATE, AND TRIBAL FORESTRY, U.S.
DEPARTMENT OF AGRICULTURE
Mr. Crockett. Good afternoon, Chair Schatz, Vice Chair
Murkowski, and members of the Committee. Thank you for the
opportunity to share the Forest Service's perspective on S.
4370, the Tribal Forest Protection Act Amendmnets of 2024.
My name is John Crockett, and I have been a career Forest
Service employee for more than 26 years, and I currently serve
as the Deputy Chief for State, Private, and Tribal Forestry. In
this role, I oversee the agency's work to reach across
boundaries of the Natoin's forests by providing financial and
technical assistance to States, tribes, communities, and
private landowners.
The Forest Service works to strengthen the nation-to-nation
relationship with tribes, fulfill our trust responsibility,
honor treaty rights and enhance tribal co-stewardship of our
Natoin's forests and grasslands that is fundamental to our
mission. Recent accomplishments demonstrate our growth in
tribal collaboration.
Last February, we released a tribal action plan detailing
actions that the Forest Service would take to meet our general
trust responsibilities, honor treaty rights, and support tribal
self-determination. One of our first actions was to add the
word ``tribal'' to the name of our deputy area that I lead. It
is now State, Private, and Tribal Forestry, to recognize the
ongoing commitment of our work with tribes.
In Fiscal Year 2023, we executed more than 120 co-
stewardship agreements with tribes, investing more than $68
million. With the funding from the Bipartisan Infrastructure
Law, the Inflation Reduction Act and our regular appropriation,
our efforts have increased ongoing projects with tribes.
Since Fiscal Year 2023, we have provided more than $130
million to benefit tribes through programs like our Urban and
Community Forestry Program, Wood Innovations, Community
Wildfire Defense Grant, and our Landscape Scale Restoration
Program.
The Tribal Forest Protection Act of 2004 provides the
Forest Service with the authority to enter into agreements or
contracts with tribes to carry out projects on the national
forest system that protecting bordering or adjacent tribal
lands. This authority has been key in enabling our
collaboration with tribes.
The bill under discussion today, S. 4370, shares the goals
similar to those laid out in Joint Secretarial Order 3403,
Fulfilling the Trust Responsibility to Indian Tribes for the
Stewardship of the Federal Lands and Water. S. 4370 would amend
the Tribal Forest Protection Act to expand the definition of
Indian forests and range lands to include lands held by Alaska
Native Corporations, enabling four ANCs with lands proximate to
the Tongass and Chugach National Forests to conduct work
through TFPA.
The Forest Service Supports the intent of this addition,
which would amplify the agency's ongoing collaboration with
tribes, such as our agreement bewten the Tongass National
forest and the Tlingit and Haida Tribes that formalize our co-
stewaardship agreement with the Mendenhall Glacier National
Recreation Area.
Second, S. 4370 would strike the requirement that Indian
lands border or be adjacent to Forest Service or Bureau of Land
Management lands, instead requiring lands that have a special
geographical, historical or cultural significance tribes. We
agree that the removal of the bordering adjacency requirement
is necessary to expand tribal participation and would like to
work with the Committee and the bill's sponsors to discuss
criteria for making this happen.
Third, S. 4370 would expand the program eligibility to
allow for work on Indain Forest range lands. The Forest Servcie
would like to work with the Committee to discuss the legal and
administrative impacts of changing TFPA scope in this way,
including how much changes may benefit from clarifying the role
of the Bureau of Indian Affairs, Forest Service, and the Bureau
of Land Management regarding the work on tribal lands other
than those that are the Alaska Native Corporation lands.
In closing, we support the Committee's goal to expand TFPA
and broaden the Forest Servcie's authorities to work with
tribes. We look forward to continuing to work with the
Committee on adaptations to TFPA as well as other opportunities
to advance co-stewardship and foster stronger tribal relations.
Chair Schatz, Vice Chair Murkowski and members of the
Committee, this concludes my statement. I look forward to
answering any questions.
[The prepared statement of Mr. Crockett follows:]
Prepared Statement of John Crockett, Associate Deputy Chief for State,
Private, and Tribal Forestry, U.S. Department of Agriculture
Chairman Schatz, Vice Chairman Murkowski, and Members of the
Subcommittee, thank you for the opportunity to appear before you today
to discuss the views of the U.S. Department of Agriculture (USDA).
Federally recognized Indian Tribes are sovereign nations with long-
standing government-to- government relationships with the Federal
Government. We acknowledge that many of the Federal lands and waters
managed by the USDA and the Department of the Interior are the
traditional territories of American Indians and Alaska Natives. These
lands are home to sacred sites and burial sites, wildlife, and other
sources of indigenous foods and medicines. Many of these lands are in
areas where Tribes have reserved rights to hunt, fish, gather, and
practice their traditional ceremonies pursuant to statutes and ratified
treaties and agreements with the Federal Government.
Forest Service policy honors the Federal trust relationship with
Tribes, promotes protection of these ancestral lands and waters, and
enhances co-stewardship opportunities with Tribes based on a suite of
treaties, Federal laws and regulations, court decisions, executive
orders and memorandums, interagency agreements, and agency-specific
direction. These include but are not limited to the Tribal Forest
Protection Act, Good Neighbor Authority, Stewardship Contracting
Authority, Wyden Amendment, Service First, Executive Order 14096 on
Revitalizing Our Nation's Commitment to Environmental Justice for All,
and the Presidential Memorandum on Tribal Consultation and
Strengthening Nation-to-Nation Relationships.
The Forest Service's recent expansion of work is consistent with
our general trust responsibility and honors Tribal sovereignty. It has
taken many forms:
Tribal co-stewardship agreements developed in response to
Joint Secretarial Order 3403 promote an approach to managing
national forests and grasslands that seeks to protect the
treaty, religious, subsistence and cultural interests of
federally recognized Indian Tribes. In Fiscal Year (FY) 2023,
the Forest Service and Tribes executed more than 120
agreements, representing a total investment of approximately
$68 million, more than triple the $19.8 million invested in FY
2022. These agreements implement vegetation management projects
to protect Tribal land and communities and reduce hazardous
fuels in critical and cultural landscapes while strengthening
our government-to-government relationships with Tribal nations.
The 2018 Farm Bill also expanded the Good Neighbor Authority
(GNA) to Tribes. GNA allows the Forest Service to enter into
cooperative agreements and contracts with Indian Tribes,
States, and counties to perform forest, rangeland, and
watershed restoration services on the National Forest System.
Since FY 2018, Tribes have entered 30 GNA agreements, totaling
$7.3 million, to accomplish a variety of restoration work,
including addressing wildfires, pest control, climate change
vulnerability assessments, and cultural resource protection.
In FY 2021, the Infrastructure Investment and Jobs Act
(IIJA) made additional funds available for Indian Tribes and
states to implement forest management and wildfire mitigation
projects on Federal lands pursuant to the GNA or the Tribal
Forest Protection Act (TFPA). The IIJA provided the Forest
Service with $5.5 billion to reduce wildfire risk and create
healthy and resilient ecosystems across Tribal, Federal, State,
and private lands. This included the first-ever Tribal program
appropriations for the Forest Service, increased eligibility
for Tribes, and opportunity for priority allocations for
Tribes.
Several statutes and implementing regulations authorize the Forest
Service to enter into agreements and contracts with and/or provide
grants to Indian Tribes to protect Tribal land, communities, and
resources. The Tribal Forest Protection Act of 2004 (TFPA) provides
authority for the Forest Service to enter into agreements or contracts
to carry out projects on the National Forest System that protect
bordering or adjacent Indian forest land and rangeland from threats
such as fire, insects, and disease while being informed by Tribal
knowledge. Tribes may submit requests to the Secretary of Agriculture
to enter into agreements or contracts. The 2018 Farm Bill provided
additional opportunity, with a new Tribal forestry self-determination
demonstration authority, for increased Tribal participation in the co-
stewardship of the National Forest System.
TFPA has been a key authority available to the Forest Service to
collaborate with Tribes to protect Tribal forest lands, rangelands, and
communities from threats that originate from the National Forest System
and to restore National Forest System lands that encompass treaty
rights, traditional use, and other areas of Tribal significance.
Notwithstanding the import of the TFPA in bringing Indigenous Knowledge
and Tribal voices to Federal management of the National Forest System,
some have observed that there are aspects of the authority that limit
its application.
Some have argued that TFPA's structure has limited the program's
utilization and ability to meet Congress' intent of protecting and
restoring Tribal lands. S. 4370, the Tribal Forest Protection Act
Amendments Act of 2024, would amend existing law to:
1. Expand the definition of ``Indian forest land or rangeland'' to
include lands held by Alaska Native Corporations. Under the Alaska
Native Claims Settlement Act (ANCSA), Congress did not place Native
land in Alaska into trust or restricted status. Instead, land was
conveyed to Alaska Native Corporations (ANCs) to manage for their
shareholders. TFPA's current definition of ``Indian forest land and
rangeland'' prevents nearly 44 million acres of ANCSA land and
resources from being protected from threats from Federal lands under
the jurisdiction of the Forest Service and Bureau of Land Management.
In addition, the TFPA requires that the land be ``under the
jurisdiction'' of a Tribe, which further prevents ANSCA lands from
qualifying.
There are four ANCs that hold lands pursuant to the Alaska Native
Claims Settlement Act (43 U.S.C. 1601 et seq.) that border or are
adjacent to the Chugach and Tongass National Forests and/or may be
proximate to potential threats from those National Forests. Expansion
of TFPA to those lands under ANC oversight would create opportunity for
Sealaska and Chugach Alaska Corporations, and potentially Ahtna, Inc.
and Cook Inlet Region, Inc. The Forest Service does not have a presence
outside of southeast Alaska.
2. Strike the requirement that Indian lands ``border on or be
adjacent to Forest Service or Bureau of Land Management lands.'' The
bill instead requires the Forest Service or Bureau of Land Management
land to have a special geographic, historical, or cultural significance
to an Indian Tribe. Tribes have sacred sites, cultural landscapes, and
other resources on federal lands that they want to protect or restore,
but the lands on which those resources exist are not always bordering
on or adjacent to Indian lands.
Some have observed that a limitation of TFPA is the requirement
that the Indian forest land or rangeland border or be adjacent to lands
in the National Forest System. This reduces participation for Tribes
without an existing, or no, land base that meets these criteria.
The TFPA currently includes the following Tribally-related factors
in evaluating the proposal of the Indian Tribe:
the status of the Indian Tribe as an Indian Tribe;
the trust status of the Indian forest land or rangeland of
the Indian Tribe;
the cultural, traditional, and historical affiliation of the
Indian Tribe with the land subject to the proposal;
the treaty rights or other reserved rights of the Indian
Tribe relating to the land subject to the proposal;
the Indigenous Knowledge and skills of members of the Indian
Tribe;
the features of the landscape subject to the proposal,
including watersheds and vegetation types;
the working relationships between the Indian Tribe and
Federal agencies in coordinating activities affecting the land
subject to the proposal; and the access by members of the
Indian tribe to the land subject to the proposal.
Amending the bordering or adjacency criteria to include Indian
forest land or rangeland and Tribal communities that are reasonably
proximate to a threat from the National Forest System may be a more
effective framework to expand eligibility and to implement, as it can
include factors such as the type and extent of the risk to Tribal
lands, resources, and communities. For example, wildland fire travels
over many acres; disease can flow downstream over many miles; insects
can pervade over great distances. Therefore, the scope of reasonable
proximity to the threat will expand the range of eligible Indian forest
land or rangelands so that more Tribes will be able to submit TFPA
proposals for work on National Forest System land.
Amending the bordering or adjacency requirement to instead allow
for proximity, amending the definition of Indian forest land and
rangeland to include ANCSA lands, and clarifying when Tribes must
exercise jurisdiction over the lands, may achieve the desired goals of
establishing Tribal relationships to the landscapes of interest and
allow ANCs to participate. If the Committee would like to discuss
additional/different criteria to establish ``special geographic,
historical, and cultural relationships'' or other approaches to define
the Tribal relationship to the lands within the National Forest System,
the Forest Service would welcome that conversation.
3. Expand program eligibility to allow for work on Indian forest
land or rangelands. The current program only applies to work conducted
on Federal lands under the jurisdiction of the Forest Service or Bureau
of Land Management. The TFPA came into being after the fire season of
2003 when 18 reservations were affected by wildfire from federal lands.
To help reduce the threat of future tragedies, the Tribal Forest
Protection Act of 2004 established a process to allow Tribes to perform
hazardous fuels reduction operations and other forest health projects
on U.S. Forest Service and Bureau of Land Management lands bordering or
adjacent to their own.
The Bureau of Indian Affairs has authority and responsibilities as
trustee to manage Tribal forest lands pursuant to the National Indian
Forest Resources Management Act (25 U.S.C. Chapter 33). Given this, the
Forest Service would like to work with the Committee to discuss the
legal and administrative impacts of changing the scope of the TFPA,
including how such changes may benefit by clarifying the role for each
of the Bureau of Indian Affairs, Forest Service, and Bureau of Land
Management as agencies with the different missions, obligations, and
equities regarding work on the same Tribal landscapes.
4. Add/update reporting on the program. Although the TFPA is a
process authority and not a program, the Forest Service takes no issue
with instituting a reporting regime to monitor and assess the
performance outcomes of work performed under the TFPA.
5. Add a five-year authorization of appropriations of $15 million
per year. The Forest Service received its first-ever TFPA
appropriations in the Infrastructure Investment and Jobs Act, of up to
$8 million per year for TFPA (Division J) and $32 million per year
(40804(b)(2)) for both States and Tribes to implement TFPA and Good
Neighbor Authority. In FY 2024, more than $185 million was requested by
Forest Service field units to execute these authorities with Tribes on
the National Forest System.
The Chairman. Thank you, Mr. Crockett.
Governor Phillips, welcome.
STATEMENT OF HON. LARRY M. PHILLIPS, JR., GOVERNOR, PUEBLO OF
OHKAY OWINGEH
Mr. Phillips. Good afternoon, Chairman Schatz, Vice Chair
Murkowski, and honorable members of the Committee. I am Larry
Phillips, Jr., Governor of Ohkay Owingeh. With me today is
Councilman Anthony Moquino to show the support of the entire
council for this settlement.
I would like also to acknowledge the incredible support of
our two Senators, Senator Lujan and Senator Heinrich. I would
not be here today to discuss our settlement without their hard
work and efforts on behalf of the Pueblo.
Thank you for inviting us to this hearing. I have submitted
written testimony for the record on behalf of Ohkay Owingeh.
I ask for Congress to authorize S. 4505. My statements
today will highlight several points of that testimony. I would
like to talk about our bosque, and the water and the importance
to Ohkay Owingeh.
Two things are the bosque and the waters that protect and
preserve our bosque, and our lands are the very essence of what
it is to be Ohkay Owingeh. In our Tewa language, or [phrase in
Native tongue], which means a river of prosperous lands, is a
living forest among flood plains of our river. In our
ceremonies, we color ourselves and immerse ourselves with the
lands and the waters of the bosque to celebrate and give thanks
for our emergence from Mother Earth. Our people have been
deprived of this ceremony for 75 years because of actions of
the United States.
The bosque was taken from us by two separate actions of the
United States. In 1955, the Bureau of Reclamation and Army
Corps of Engineers channelized the Rio Grande in an effort to
move water away from our section of the river to benefit junior
water users farther downstream. Authorization in 1956 of the
construction of Abiquiu Dam changed the flow of the Rio Chama.
Both of these actions have resulted in a devastating effect to
our bosque and our waters necessary for a proper functioning
river.
We entered into a settlement negotiations to preserve and
restore our water resources in the bosque. This is the first
tribal water settlement that I am aware of that settles a claim
by an Indian tribe that the United States confiscated tribal
lands and water in a river channelization project, as I have
mentioned. The United States bulldozed those rivers, they
largely destroyed our rivers and bosque. This needs to be
fixed. This settlement gives us the tools for that.
We seek Congressional approval and funding for a
comprehensive water rights settlement, a settlement that will
last for all time. This settlement encompasses more than Ohkay
Owingeh's water rights. It is a regional agreement with
regional benefits. Ohkay Owingeh, the State of New Mexico, City
of Espanola and many small farmers in the Rio Chama Basin
together crafted this agreement. The settlement improves water
reliability to all water users in the Rio Chama Basin. In
exchange for these benefits, we will give up time immemeorial
priority to facilitate any equitable sharing of our waters
during dry years. This settlement will increase supplies. We
will work with our neighbors for additional water sources to
store in available existing reservoirs.
The settlement will provide us use of efficiency by
authorizing and funding the delivery of infrastructure that
will provide economic benefits in the form of new jobs. We seek
$740 million in Federal funds to implement this agreement. New
Mexico has committed to a local cost share of $131 million.
Ohkay Owingeh will use the Federal funds for many purposes
related to this settlement. These could include, for example,
new grounwater wells, water treatment facilities, irrigation
ditch improvements to conserve water, water delivery facilities
for both farms and as a backup to serve the river and its
adjacent vegetation.
We understand that this settlement is fund-based and the
Ohkay Owingeh will not be able to return for additional
funding. If we underestimate the cost of this project we build,
we accept that risk.
This concludes my oral testimony. Thank you. I am ready for
questions.
[The prepared statement of Mr. Phillips follows:]
Prepared Statement of Hon. Larry M. Phillips, Jr., Governor, Pueblo of
Ohkay Owingeh
Introduction
I am Larry Phillips, Jr., Governor of Ohkay Owingeh, a federally
recognized Tribe in Northern New Mexico. I thank you for convening this
hearing and inviting me to testify. The welfare of the people of Ohkay
Owingeh is one of my primary responsibilities as Governor. I submit
this testimony on their behalf. We respectfully ask that Congress enact
S. 4505, the Ohkay Owingeh Rio Chama Water Rights Settlement Act of
2024.
At the outset, I wish to acknowledge and respect a Pueblo ancestor,
Po'Pay, who has been given the great honor of being recognized by the
State of New Mexico with a statue in the United States Capitol. Born at
Ohkay Owingeh in 1630, Po'pay lived with a desire to protect the lives
and health of his people, along with other Native people, and to
preserve culture and traditions so that my children and their children
know and understand not just their heritage, but who they are.
In 1680, Po'pay led a coordinated revolt by all Pueblos against
Spanish invaders. The invaders had enslaved us, taken our homes for
themselves, and suppressed with violence and executions our efforts to
practice our culture and honor our history. Po'pay was whipped for
having engaged in traditional Pueblo practices; the statue in the
Capitol shows the scars on his back. Together with his neighbors,
Po'pay drove the Spanish out of New Mexico and restored Pueblo
authority. For a period of 12 years, the Pueblos enjoyed again the
ability to govern themselves consistent with their traditions.
Po'pay gave us the opportunity to restore and maintain our
traditions in the face of outside challenges and enabled my ancestors
to address the return of the Spanish with a renewed strength. Po'pay
taught us how to both respect ourselves and our own culture and accept
the new reality of a different culture living in our lands. In many
respects, the water settlement you are considering is an extension of
Po'pay and his teachings, as we have accepted and embraced the needs of
our neighbors as part of this settlement, both politically and
culturally. This water settlement reflects our sacred promise to our
future generations to protect our lands and waters for their benefit.
Background of the Water Rights Settlement and Damage to the Bosque
This bill implements an agreement that settles a water rights
lawsuit filed by New Mexico to establish rights to the waters of the
Rio Chama Stream System. The State sought to quantify the Pueblo's
water rights. After many years of litigation, we negotiated the
quantifications that are established in the settlement agreement, which
will provide adequate water for our needs now and into the future from
the Rio Chama source on our lands. Because of the cultural importance
we place on water, however, this settlement is much broader in scope,
and more important than just those numbers, more important than simply
assigning limits to our water uses.
This same agreement also settles a second lawsuit, one that we
filed in the U.S. Court of Federal Claims seeking to restore the damage
to our cultural resources caused by the United States and the damage to
our people from being deprived the right to fully exercise their
religious beliefs and practices. By destroying the bosque on our lands,
the United States violated the constitutional principle that property
shall not be taken without due process and adequate compensation. Our
bosque is at the center of our cultural and religious practices. It is
a sacred place. By taking our bosque and preventing our tribal members
from being able to fully exercise their religious practices, the United
States violated its duty to protect the resources of the Pueblo.
In the 1950s and 1960s, the Bureau of Reclamation and Army Corps of
Engineers channelized that portion of the Rio Grande that flows through
Ohkay Owingeh's homeland. With bulldozers and other heavy machinery,
the U.S. agencies destroyed the ancient meandering ribbons of the Rio
Grande and transformed the river into something very different than
what the Creator gave us. The river became narrow and bounded on both
sides by levees. The U.S. intended to speed the flow and increase the
amount of water to be delivered through our lands to benefit the junior
water users in southern New Mexico. The U.S. succeeded in achieving its
goals. Not surprisingly, the side channels, wetlands, robust plant- and
tree-life, and the animals of the bosque, all gradually began to
disappear. The groundwater table dropped. Over the last 70 years, this
bosque has withered and begun its path to complete destruction.
To compound the problem, in the 1960s the Army Corps constructed a
dam on the Rio Chama. The dam succeeded in its purposes of regulating
Rio Chama flows and storing water for release to farmers south of us.
The loss of flood flows in the Chama, which farmers had demanded, and
the decrease of water in the river led to the same disaster as occurred
on the Rio Grande: the slow death of the bosque.
The intentional destruction of the bosque is consequential not just
because the U.S. destroyed a large swath of two healthy and vibrant
rivers. This bosque is fundamental to Ohkay Owingeh traditional and
cultural practices. The Ohkay Owingeh national symbol contains images
of materials from the bosque. Our ceremonies are built upon, and our
regalia is made up of materials from the bosque. Our world revolves
around the bosque. The harm to our people from the loss of our land,
our plants and animals, and our ability to fully practice and exercise
our religion is nearly immeasurable.
Ohkay Owingeh people cannot sit by while our critical resources
wither and die. We must hold the U.S. to its responsibility to address
the damages it has caused. Although the full extent of the harm
suffered by Ohkay Owingeh people is incalculable, this settlement will
provide funding to allow us to mitigate those damages.
The bosque restoration project is supported by the State of New
Mexico, City of Espanola, and the many parciantes on the acequias (the
small farmers) in the Rio Chama. They support the bosque restoration
project because they understand its importance to Ohkay Owingeh. But
they also support bosque restoration because they know that a healthy,
restored, and fully functioning bosque has benefits for all of New
Mexico, including improved water quality, groundwater recharge, habitat
for birds, fish, and plants, including species listed on the Endangered
Species Act. Bosque restoration and the benefits that brings to the
entire region is just one more way through this settlement that we take
care of our needs and at the same time, ensure benefits to our
neighbors and our State.
Separate and apart from our settlement, the Corps of Engineers,
through the Espanola Project authorized in Water Resources Development
Act of 2018, Public Law 115-270, 132 Stat. 3830, Section 1401(4), has
undertaken a bosque restoration project that includes a small part of
our lands. This initial authorization will restore a small portion of
our bosque. The authorization contained in this bill, S. 4505, will
provide the means to finish the job.
This settlement is created by the people who live in that region.
We will share our water resources. We will protect and conserve our
water. We will respond together to the crises that will inevitably
come. We will celebrate together our successes as small farmers. Ohkay
Owingeh's neighbors, the signatories to this agreement, have agreed to
work with the Pueblo to enable us to restore the health of the bosque,
most precious of our cultural resources. This agreement is a product of
all of us: our thinking, our work, our preparation for an increasingly
uncertain future. Now we ask Congress to partner with these citizens of
the United States and support us in managing our water resources
fairly, for the benefit of all in the region.
Specific Provisions of S. 4505
As authorized by S. 4505, the Pueblo agrees to limitations on its
current and future water uses; we waive our rights to a senior priority
to permit sharing our water resource with our neighbors during dry
periods; the Pueblo retains its ability to acquire water rights and
lands in the future from willing sellers. We are asking Congress to
approve the agreement and to appropriate $745 million for Pueblo
development of water infrastructure and restoration of the bosque. The
Legislation reflects an agreement by the State of New Mexico for its
cost share: $98.5 million for irrigation improvements, $32 million for
the City of Espanola water infrastructure, and $500,000 for mitigation
of well impairments. The legislation in Section 5 confirms and
establishes as Ohkay Owingeh's federal water rights. The provisions of
the agreement are summarized here:
Irrigation--the Pueblo will have sufficient surface water to
irrigate our farmlands of 310.45 acres. The agreement
authorizes irrigation of an additional 1,562 acres formerly
owned and irrigated by the Pueblo; these lands and water rights
must be reacquired by the Pueblo from willing sellers.
The Pueblo will have sufficient water for livestock.
The Pueblo will have a right to the use of 981-acre feet per
year (afy) from groundwater wells for current and future
domestic, commercial, and municipal purposes; most of that
water use is subject to offsets (the Pueblo must replace the
water it depletes from the system) to protect downstream users
and to ensure state compliance with the Rio Grande Compact.
The Pueblo will have the right to restore the Rio Chama
bosque by diverting water from the river during high-flow
events under specified water conditions. The Pueblo in addition
may apply 250 afy to the bosque at any time by diversions from
the Rio Chama, or the use of groundwater or irrigation return
flows. The Pueblo expects high flow events to allow significant
improvements to the bosque, and the yearly use of 250 af to be
sufficient to maintain the health of the bosque in between
flood events.
As mentioned previously, the Pueblo will waive its senior
priority right to water and the parties will fairly allocate
among themselves water available during times of shortage. The
shortage sharing schedule will be in the form of an annual
agreement, binding on all parties, and enforceable by the New
Mexico State Engineer.
The parties have agreed to pursue water storage in existing
reservoirs as a joint effort.
Ohkay Owingeh and the City of Espanola have agreed to avoid
interference with each other's groundwater wells.
The State and Pueblo will exercise their respective
sovereign authorities over management of water resources. The
Pueblo, pursuant to its laws, will administer water within the
Pueblo Grant. The State, pursuant to its laws, will administer
water outside the Grant. The administration of water rights
will be conducted by both governments in a public manner with
full timely disclosure to the public. The State has agreed to
provide a fund to mitigate impairment to domestic and livestock
wells that might arise from Pueblo water use.
Proposed federal funding for the Pueblo may be used to
acquire water rights, plan for, and develop water-related
infrastructure, administration of water rights, and bosque
restoration.
The second part of the agreement provides funding for restoration
of the Rio Chama and Rio Grande bosque within the Pueblo Grant. The
damage to the rivers' riparian areas caused by the Bureau of
Reclamation and Army Corps of Engineers is significant, continuing, and
increasingly devastating to our cultural practices. The U.S. was
focused on getting water to farmers through the dam at Abiquiu and the
channelization of the Rio Grande and acted with disregard to the vast
damage to people of Ohkay Owingeh.
Ohkay Owingeh fully understands that S. 4505 authorizes a fund-
based settlement, which means that we are prepared to bear the risk of
underestimating the cost of constructing the water infrastructure and
restoring the bosque.
Ohkay Owingeh people were farmers and hunters a thousand years ago.
We still are. We were people who learned from our ancestors, followed
our traditional ways; we still do. We speak Tewa, our language. We hold
our ceremonies. We also build industrial parks, establish businesses
with operations throughout the country, build houses, run a government,
educate our children in our schools, and provide our community with
health care, public services, and jobs. Ours is a complex world. Our
ancestors are part of our daily lives. Yet we live in the 21st century.
On behalf of my people, our ancestors who were stewards of the
natural resources of northern New Mexico, and our children and
grandchildren, we urge this Committee to endorse our carefully crafted
plan to restore and maintain our primary cultural resource, the bosque.
River restoration is in the broad public interest. Restoration will
return to the people of New Mexico an environmental paradise. And
restoration will assure Ohkay Owingeh that its traditional practices
will continue.
Thank you.
The Chairman. Thank you very much, Governor.
Now we will welcome virtually President Padilla for her
testimony.
STATEMENT OF HON. THORA PADILLA, PRESIDENT, MESCALERO APACHE
TRIBE
Ms. Padilla. Good afternoon, Chairman Schatz, Vice Chair
Murkowski, and members of the Committee. And a special hello to
Senator Lujan and Senator Heinrich.
My name is Thora Padilla, and I am honored to serve as
President of the Mescalero Apache Tribe. Thank you for this
opportunity to testify about S. 4370, proposed amendments to
the the Tribal Forest Protection Act.
For Mescalero Apache people, forestry is a part of our way
of life. The forest protects our watershed and provides food
and shelter to our people. We played a role in setting national
tribal forestry policies for decades. Mescalero was among the
first tribes to extend support for the Tribal Forest Protction
Act of 2004, and one of the first to engage in a stewardship
contract under the TFPA.
Treatments conducted under the Six Springs Stewardship
Contract, as well as fuel treatments conducted on tribal lands
at Eagle Creek, were key to limiting damage to our reservation
and the village of Riudoso from the Little Bear fire of 2012.
The TFPA has proven itself for 20 years now, and it is time to
expand the reach of projects and tribal participation in this
program.
For this reason, the Mescalero Apache Tribe extends our
full support for S. 4370. The bill eliminates the requirement
that Federal land must border or be adjacent to Indian land.
Forest fires, disease and insect infestation do not respect
boundaries. Removing this barrier will permit tribes to conduct
landscape scale management projects throughout Federal lands
where the tribe has historical or cultural connections to the
land.
The Lincoln National Forest and other nearby Fedreal lands
are part of the Mescalero Apache Tribe's ancestral homelands.
S. 4370 holds potential to give the Mescalero Apache a greater
voice in the development of forest management strategies that
will protect our reservation, our investments in the forest,
and our nearby communities.
S. 4370 also expands TFPA projects to include treatments on
Indian lands which will help offset the significant and
longstanding funding shorfalls for tribal forest management. As
the latest FMAT report shows, tribal forestry programs receive
one-third to oen-tenth of the Federal funding delivered to our
State and Federal counterparts.
Finally, the bill adds a funding provision to the TFPA
which will further improve implementation and help the Act
reach its true potential.
In addition to the improvements proposed in S. 4370, we ask
the Committee to expand on the 2018 Farm Bill's TFPA 638
Forestry Program. Mescalero testified before this Committee in
2018 in support of this program. However, last summer, when I
reached out to work with the Lincoln National Forest on a 638
forestry contract, I was told that the project did not meet the
TFPA requirements and even if it did, there was no funding to
support the proposed 638 contract.
To address these barriers, we urge the Committee to support
existing proposals included in both the House and Senate Farm
Bills to remove the demonstration designation from this program
and make it permanent. We also ask the Committee to address
other needed improvements to the TFPA 638 Forestry program. We
ask that you add a funding mechanism to the program that will
also cover contract support costs.
These additional improvements to the TFPA will enable
tribes to consistently enter into contracts and compacts with
the Forest Service and BLM. Once this takes place, tribes and
tribal priorities will become part of the agency decision-
making process, and will have positive impacts on the exercise
of tribal treaty rights, protection of Native sacred places and
protection of tribal investments on Federal lands.
In closing, I want to again thank you for this opportunity
to testify today in support of S. 4370 and its proposed changes
to the Tribal Forest Protection Act that will help the law
reach its full potential. I am now prepared to answer any
questions that the Committee may have.
Thank you.
[The prepared statement of Ms. Padilla follows:]
Prepared Statement of Hon. Thora Padilla, President, Mescalero Apache
Tribe
Good afternoon Chairman Schatz, Vice Chair Murkowski, and Members
of the Committee. My name is Thora Padilla and I am honored to serve as
President of the Mescalero Apache Tribe (``Mescalero'' or ``Tribe'').
Thank you for this opportunity to testify about S.4370, the Tribal
Forest Protection Act Amendments Act of 2024.
The Tribal Forest Protection Act of 2004 (TFPA) has proven itself
for two decades now. We fully support the proposed changes to the TFPA
included in S. 4370. In addition, we urge the Committee to support
proposals to make the TFPA 638 Forestry program permanent and to extend
a funding mechanism to that program. We also support proposals to
expand TFPA to authorize Tribal Governments to conduct prescribed burn
and other projects. And finally, we urge the Committee to examine and
support passage of proposals to bring parity to the Small Tracts Act.
Background: the Mescalero Apache Tribe
The Mescalero, Lipan and Chiricahua Apache, make up the Mescalero
Apache Tribe. Long before the first European settlers came to this
land, our Apache ancestors roamed the Southwestern region, from Texas
to central Arizona and from as far south as Mexico to the peaks of
Colorado. We were protected by our four sacred mountains: White
Mountain/Sierra Blanca, Guadalupe Mountains, Tres Hermanas/Three
Sisters Mountains, and Oscura Peak. We traveled the rough Apacheria
through mountains and deserts but always returned to our sacred White
Mountain.
As Europeans began to encroach on our lands, the Apaches entered
into a treaty with the United States on July 1, 1852. The Treaty with
the Apaches promised the Tribe a permanent homeland in our aboriginal
territory. The Mescalero Apache Reservation (``Reservation''), located
in the White and Sacramento Mountains of rural south-central New
Mexico, was established through a succession of Executive Orders in the
1870's and 1880's. The Reservation spans approximately 720 square miles
(460,405 acres). Our Reservation is home to 5,500 tribal citizens and
approximately 200 non-Indian residents.
The original Reservation boundaries and our ancestral homelands
encompass lands that are currently held in federal ownership, including
the Lincoln National Forest (LNF) and Bureau of Land Management (BLM)
lands surrounding the Fort Stanton State Monument. These federal lands
were carved out of our ancestral homelands. Evidence of our connections
to LNF is found throughout the Forest, from rock art to mescal pits to
the Apache Trail, which was a prime route for water in the Sacramento
Mountains. These Mountains are home to the Mountain Spirit Dancers--
holy beings that ensure our well-being. The Mescalero Apache people
have maintained strong cultural ties to these lands. To this day, we
continue to gather plants important to our traditions and conduct
ceremonies on these federal lands. To strengthen our ties to these
lands and to have input into their management, the Tribe has entered
into Memoranda of Understanding (MOUs) with the U.S. military and LNF.
In addition, the Tribe has invested significant resources in Ski
Apache, a resort owned and operated by the Tribe pursuant to a special
use permit. Ski Apache is located on LNF lands bordering our
Reservation.
Mescalero Apache Forest Management
We are the people of the Mountain Forests. The Mescalero Apache
have managed our forests holistically for centuries. Sustainable forest
management is part of our way of life. In addition to promoting the
health of our forests, our forest management practices promote the
growth of food and medicinal plants, healthy wildlife, and historically
served to protect our lands from invaders.
This tradition of forestry was put into formal practice when the
Bureau of Indian Affairs (BIA) Mescalero Agency opened its Branch of
Forestry in 1910. Mescalero's first major commercial timber sale was in
1919. With the opening of the tribally owned Mescalero Forest Products'
(MFP) sawmill in 1987, the Tribe entered a new era of forest
management. Today, the Mescalero forest remains one of the best-
managed, healthiest forests in the Southwest.
For more than a century, the BIA Mescalero Agency and the Tribe
worked to develop a premier forestry program on the Reservation. During
the 1990's and early 2000's, the BIA Branch of Forestry employed three
professional foresters and two forestry technicians in the Timber Sale
section. This small staff was responsible for preparing and offering
for sale lumber at 16.8 million board feet annually and completing all
sale planning, environmental compliance work, timber sale layout and
administration. Due to the amount of timber harvested, the BIA
identifies the Reservation as a Category 1-Major Forested Reservation.
Additionally, the Fire Management and Fuels Management Programs are
each rated as High Complexity. These ratings describe not only the
intricacy of addressing fire concerns across a large landscape but also
the need for coordinated efforts among programs and agencies.
Operating on a shoestring budget, the Tribe's Division of Resource
Management and Protection has been able to provide high quality
forestry services on the Reservation, assisting the BIA in timber sales
and performing fuels management projects. The strong working
relationship with BIA Forestry and the implementation of contracts
under the Indian Self-Determination and Education Assistance Act (P.L.
93-638) helped the Tribe build a strong forest management system.
Before the Tribal sawmill, Mescalero Forest Products (MFP), closed
in 2012, the Tribe treated one full rotation of the commercial forest,
totaling 183,876 out of a total Reservation land base of 460,405 acres.
All 183,876 acres were considered for logging. Areas that were not
treated contained arch sites, threatened and endangered species, or
homesites.
Despite the importance of this mission, the Mescalero BIA Branch of
Forestry experienced a 43 percent reduction in staffing levels since
2016. As a result, in FY 2022 the Tribal Council passed a Resolution to
contract for and take over the BIA Branch of Forestry and Branch of
Natural Resources activities through Public Law 93-638 Self-
Determination contracts. This has allowed us to focus on Tribal
priorities and objectives to manage our forest. Through 638 contracts,
the Tribe has taken on silvicultural evaluations and prescriptions;
timber sale planning and harvest; forest development thinning and
planting; woodland management; forest protection from insect, disease,
and trespass; and fuels management. However, the Mescalero Apache Tribe
views the federal government's most fundamental treaty and trust
obligations to provide for public and fire safety on Indian lands as
non-negotiable. For that reason, our community relies on the BIA's
Mescalero Agency (the ``Agency'') to provide direct services for the
critical public safety functions of law enforcement and firefighting
services on our Reservation.
When the Tribe first began commercially harvesting timber, many
opposed the concept. This resistance to proactive forest management
began to dissipate in 1996 when the Tribe experienced its first large
fire in recent history, the Chino Well Fire. This fire began on a windy
spring day in April. Within one day, the fire threatened 42 homes,
forcing evacuations, and burning a seven-mile strip of forest of more
than 8,000 acres. Due to the rapid-fire response of Tribal fire crews,
no homes were damaged. Soon after the fire, homeowners wanted to learn
how they could protect their homes from future wildfires.
With the advent of the National Fire Plan in the late 1990's, the
BIA Branch of Forestry worked with the Tribe to develop strategic
ridgetop fuel breaks and implemented wildland urban interface
treatments around residential and recreational areas across the
Reservation. Through this program, the Tribe has treated an additional
63,968 acres through hazardous fuels reduction projects. These projects
were coordinated with harvest operations, recognizing that understory
thinning alone would not reduce the potential for destructive crown
fires. As a result of implementing wildfire mitigation measures to
reduce fire danger, the Tribe earned Firewise Communities/USA
recognition in 2003--the first tribe in New Mexico to earn such
recognition.
Hazardous fuel reduction projects are vital to our forest
management practices. Forests are living organisms. With reductions in
density, trees and ground cover are better able to thrive. Southwestern
forests grow with very little precipitation. On the Reservation and in
LNF, 26 inches of annual precipitation is considered a ``wet'' year. By
reducing tree densities to ensure the crowns are not touching, we
greatly enhance the available water, light and nutrients each
individual tree receives. With open forest conditions, pine seedlings
have a better environment to germinate, resulting in increased forest
regeneration.
In addition to our hazardous fuels management program, the Tribe
used to operate the MFP sawmill. However, the decline in the lumber
market, combined with process inefficiencies and a lack of by-product
markets, resulted in the closure of MFP twice, once in December 2008
and again in July 2012. The closure of the sawmill resulted in the loss
of 55 jobs for mill workers and 150 supporting staff (including
marking, harvesting, hauling, and administrative staff). The Tribe was
also forced to close a second mill that it owned in Alamogordo, which
employed 82 workers.
The MFP sawmill was a vital first-line forest management tool that
enabled the Tribe to treat the larger trees of the forest overstory
through selective harvests that were followed up with hazardous fuels
reduction projects in the smaller size classes. Closure of these
sawmills has significantly limited our ability to manage our forest and
assist in the management of LNF.
In addition, congressional funding cuts, implemented over the past
two decades, have further strained our forestry practices. Prior to
these cuts, the Tribe was able to manage our forest better than the LNF
on a fraction of the federal agency's budget. Failure to restore this
modest funding threatens the future success of our program.
Need to Expand the Tribal Forest Protection Act
Congress enacted the Tribal Forest Protection Act of 2004 in
response to devastating wildfires that crossed onto tribal land from
federal lands in the summer of 2003. TFPA has provided a tool for
Tribes to propose work and enter into stewardship contracts and other
agreements with the Forest Service or Bureau of Land Management (BLM)
to reduce threats on federal lands adjacent to Indian lands. The Forest
Service alone shares approximately 2,100 miles of contiguous boundaries
with Indian tribes. The TFPA authorizes the Secretaries of Agriculture
and Interior to give special consideration to tribally-proposed
projects on federal land bordering Indian trust land.
The Act was largely underutilized for years. From 2004-2008, only
10 TFPA contracts and agreements were awarded. These contracts and
agreements covered 23,230 acres and 51.5 miles of boundary. USFS-tribal
TFPA stewardship contracts have been limited in scope, focusing on
hazardous fuels reduction and invasive species treatment. This
disappointingly slow implementation of the TFPA continues to thwart the
Act's potential, leaving tribal forests more vulnerable to catastrophic
wildfire, disease and infestation from adjacent federal public lands.
TFPA partnerships should be aggressively expanded.
A case in point of the positive but limited impact of the TFPA is
the stewardship contract that the Mescalero Apache Tribe entered into
with the LNF. Through the ``Sixteen Springs Stewardship Contract'' in
2006 with LNF, the Tribe conducted fuels reduction, urban interface,
and ecosystem restoration projects that covered more than 6,300 acres
and 3.4 miles of roads along the shared boundary between our
Reservation and LNF.
These treatments greatly improved the health of adjacent LNF lands.
Added benefits of the stewardship contract included strengthening
connections with our ancestral homelands, the resulting improved
relationship between Mescalero forest personnel and LNF staff and
gaining a better understanding of the management constraints placed on
the LNF.
However, the stewardship contract ended far too early. Many
thousands of additional acres of dense forest within LNF remain
untreated and continue to threaten the lives and property of Tribal
members and the public.
Lessons Learned from the Little Bear Fire
Mescalero leadership had longstanding concerns about the dense
forest conditions in LNF. We have seen the escalation of insect
populations, including bark beetles and other defoliators on the
Reservation, and have watched as large swaths of USFS lands die around
us.
Nature provided a preview of what will happen if the Mescalero
forestry program is allowed to fail. The Little Bear Fire started
modestly on Monday, June 4, 2012. The initial small fire was caused by
lightning in the White Mountain wilderness in LNF. Over the first five
days, LNF deployed relatively few assets to contain what it thought was
a non-threatening forest fire. Firefighters worked only on day shifts,
air tanker resources were not utilized, and helicopter water drops were
minimal. On the fifth day, the fire jumped the fire line and high winds
turned the fire into a devastating inferno. By that night, the fire had
blazed through the Tribal ski area, Ski Apache Resort (``Ski Apache''),
and crossed onto Tribal lands. Within two weeks, the Little Bear Fire
burned 35,339 acres in LNF, 8,522 acres of private land, 112 acres of
state land and 357 acres of the Reservation. The fire also destroyed
more than 255 buildings and homes in the region and burned 44,500 acres
of prime watershed. The overall estimated cost of the fire, including
suppression and damages, exceeded $100 million. This number includes
more than $1.5 million to tribal assets at Ski Apache. \1\
---------------------------------------------------------------------------
\1\ Since 1960, the Tribe has leased approximately 860 acres of LNF
lands under two special use permits to establish, manage, and operate
Ski Apache. Ski Apache is located on the northern border of the
Reservation. The land is part of the Tribe's aboriginal homelands and
is located within the Sierra Blanca Mountain Range, which is sacred to
the Mescalero Apache people. Over the past 64 years, the Tribe has made
significant improvements to the Resort. In 2012, the Tribe invested $15
million to triple the ski lift capacity at Ski Apache. In addition, the
Tribe invested $2.6 million for non-ski/year-round recreation at Ski
Apache. Ski Apache employs 350 people during the ski season and
contributes millions of dollars to the local economy. Under the current
arrangement, the USFS administers these lands, and LNF has the legal
responsibility to respond to emergencies, such as the June 2012 Little
Bear Fire. However, it has been the Tribe that has acted as the primary
first responder in emergency situations. If the Tribe had not taken the
initiative, our assets at Ski Apache would have been lost in the Little
Bear Fire.
---------------------------------------------------------------------------
The Little Bear Fire crossed the Reservation line at a key
topographic area. There are two major canyons, Upper Canyon and the
Eagle Creek area, that start on the Reservation and then lead off the
Reservation. Both areas are heavily populated off-Reservation. Because
of the volume of trees that were burnt, there was a real danger that
resulting flooding would have destroyed buildings, access roads, and
existing ski runs. However, due to additional investments and hazardous
fuels projects conducted by the Tribe, major flooding was avoided. In
2008, the Tribe completed an important, cost-effective hazardous fuels
reduction project on a portion of the Reservation called Eagle Creek.
As the Little Bear Fire moved across the landscape, the previously
treated Eagle Creek project area was used as a defensible space to turn
the Little Bear Fire away from the steep, densely forested terrain of
the North Fork of the Rio Ruidoso and prevented complete devastation of
the Village of Ruidoso and its source waters.
The Little Bear Fire is proof positive that hazardous fuels
reduction projects and the TFPA work. The fire's impacts provided a
clear contrast between the healthy Mescalero forest and dense LNF and a
clear justification to increase funding for TFPA projects and for the
Tribal Forestry Management program.
S. 4370, TFPA Amendments Act of 2024
As noted above, the Mescalero Apache fully supports S. 4370, the
Tribal Forest Protection Act Amendments Act of 2024. The bill expands
the definition of Indian lands to include lands held by Alaska Native
Corporations. Importantly, S. 4370 eliminates the requirement that
federal land is ``bordering or adjacent to'' Indian land. Removing this
barrier will permit Tribal Governments to conduct landscape-scale
management projects throughout federal lands where the Tribe has
historic or cultural connections to the land.
The LNF and other nearby federal lands are part of our ancestral
homelands. S. 4370 will enable our Tribe to offer meaningful input into
the management of these lands that goes before and beyond NEPA. It
holds potential to give the Mescalero Apache Tribe a greater voice in
the development of forest management strategies on our former homelands
that will serve to protect our Reservation and nearby communities.
S. 4370 also expands TFPA projects to include treatments on Indian
lands, which will help offset the significant and longstanding funding
shortfalls for tribal forest management. And finally, the bill adds a
funding provision to the TFPA, which will provide a steady funding
stream for TFPA implementation will help the Act reach its true
potential.
In addition to the improvements to the TFPA proposed in S. 4370, we
ask the Committee to expand on the 2018 Farm Bill's establishment of
the 638 Forestry program. Mescalero testified before this Committee in
support of the 638 Forestry program. However, last summer, when I
reached out to work with the Lincoln on a 638 Forestry contract, I was
told that the project didn't meet the TFPA requirements, and even if it
did there was no funding to support the proposed 638 contract. The
Committee should address these and other barriers to full
implementation of the TFPA 638 Forestry program.
First, we urge the Committee to support existing proposals to
remove the ``demonstration'' designation from this program and make it
permanent. To ensure implementation of the program, we ask that you add
a funding mechanism to the 638 Forestry program that also covers
contract support costs. We ask that you amend the program to limit an
agency's ability to reject valid tribal requests to engage in 638
forestry contracts or compacts. And finally, we ask that you extend
Federal Tort Claims Act protection to the tribe and tribal employees
engaged in TFPA 638 Forestry contracts.
These additional improvements to the TFPA will enable Tribes to
consistently enter into contracts and compacts with the Forest Service
and BLM. Once this takes place, Tribes and Tribal priorities will
become part of the agency decisionmaking process, making positive
impacts on the exercise of tribal treaty rights, protection of Native
sacred places, and protection of tribal investments on federal lands.
Finally, federal land management laws, like the Small Tracts Act,
16 U.S.C. 521c-521i, authorize USDA to transfer federal lands to
state and local governments, but fail to permit similar administrative
transfers to Tribal governments. To achieve parity and respect for the
governmental status of Indian Tribes, we urge the Committee to examine
and advance proposals to amend the Small Tracts Act to provide the
Forest Service with legal authority to administratively transfer
federally managed forest lands back to Tribal governments in situations
where such lands are former reservations or encompass ancestral lands.
Conclusion
The Tribal Forest Protection Act holds great potential to protect
Indian lands, improve the health of federal lands, and limit the
impacts of wildfires. S.4370, the Tribal Forest Protection Act
Amendments Act, proposes significant improvements to the TFPA. We urge
the Committee to advance this bill and consider advancing other needed
improvements to the TFPA that will help reach the Act's full potential.
The Chairman. Thank you very much.
President Mallott, please proceed with your testimony.
STATEMENT OF BENJAMIN MALLOTT, PRESIDENT-ELECT, ALASKA
FEDERATION OF NATIVES
Mr. Mallott. Thank you, and good afternoon, Chairman
Schatz, Vice Chair Murkowski and members of the Committee.
My name is Ben Mallott. I have the honor of serving as the
Vice President of External Affairs and also as the President of
AFN. AFN today is the largest statewide Native organization in
Alaska. Our membership includes 177 Alaska Native tribes, 154
village Native corporations and 9 of our 12 regional tribal
consortiums.
I am here to talk in support of Sennate Bill 4370, the
Tribal Forest Protection Act. I want to thank Senator Murkowski
for her leadership on this bill.
The importance of forest management for Alaska Native
communities cannot be overstated. Our forests play a critical
role in the lives of our Native communities, provide a source
of subsistence and cultural practices and provide economic
opportunities in our communities that are challenged by their
remoteness and high cost of living. Effective forest management
is essential to preserve Native forest lands for future
generations.
The Tribal Forest Protection Act, or TFPA, is an important
tool that allows Native communities to participate in the
stewardship of Federal forest lands and also adjacent to Native
lands. But it has faced several challenges that have limited
its work in our communities. The original TFPA, while well-
intended, did not fully account for the ownership of our Alaska
Native communities.
As Senator Murkowski mentioned, ANCSA transferred more than
44 million areas into Alaska Native corporations and their
communities. The crucial language was left out of the original
TFPA. This exclusion really limits Alaska Native communities
and our landowners to fully engage in stewardship of our
management, especially across management boundaries.
As you all know, wildfires and other natural disturbances
don't care about boundaries. That is why we need to remove the
obstacles to allow us and our communities to work across these
boundaries to preserve our forests. Unfortunately, the
definition the TFPA limits this ability.
As mentioned, the TFPA as enacted undermines our ability,
even in the Nation's largest forest, the Tongass, to protect
and manage the forest for wildfire threats, pests, and other
forest issues; it has been a challenge. Over 2 million acres of
forest land in Alaska has been affected by spruce beetle
outbreak. The U.S. Forest Service recommends range management
to help reduce this damage from forest fires.
Currently, the TFPA does not allow ANCs to engage with the
Forest Service on these issues, or with the BLM. AFN supports
Senate Bill 4370 because of this growing risk of wildfires and
other invasive pests in our forests.
As I mentioned, the Tongass National Forest is type of
rainforest. I grew up in Juneau. We are getting more dry
weather and more unusual weather. The ability for ANCs and our
tribes to manage our lands is critical especially going
forward.
Alaska Native Corporations, such as SeaAlaska Corporation,
maintain silviculture programs. The crews are well equipped to
assist in this process and also nearby Federal lands. As
mentioned, this bill would enable our ANCs like SeaAlaska to
hire more forest partnership crews in our communities to manage
our own forests alongside our Federal partners.
There is also a close working relationship with the Forest
Service and BLM. As such, AFN supports S. 4370's forest
definition of ANCs in forest range land and forest lands. The
bill also allows for non-adjacent land use as well. As you
know, ANCSA is kind of, we have patches of land throughout. As
I mentioned, wildfires don't always start next to our lands.
Our work with the Forest Service to protect our lands, even
though they may be far away, is crucial for the management of
our forests.
I also want to mention, if we have time, Senate Bill 4370
also aligns with Joint Secretarial Order 3403 on fulfilling the
trust responsibilities on Indian tribes as outlined by USDA and
DOI.
In closing, S. 4370 is a much-needed update to the TFPA. It
addresses unique challenges of Native communities to partner
with the Federal Government. It provides tools and resources
necessary for effective management to benefit our Native
communities.
On behalf of AFN, I urge this Committee to advance this
legislation to protect our Native forests.
Gunalcheesh, Haw'aa, Baasee. Thank you.
[The prepared statement of Mr. Mallott follows:]
Prepared Statement of Benjamin Mallott, President-Elect, Alaska
Federation of Natives
Good afternoon, Chair Schatz, Vice Chair Murkowski, and
distinguished members of the Senate Committee on Indian Affairs. My
name is Benjamin Mallott. I have the honor of being the President-Elect
of the Alaska Federation of Natives (AFN). I am writing to express our
strong support for S. 4370, the Tribal Forest Protection Act Amendments
Act of 2024, introduced by Senator Lisa Murkowski.
AFN was formed to achieve a fair and just settlement of Alaska
Native aboriginal land claims, and today, AFN is the oldest and largest
statewide Native membership organization in Alaska. Our membership
includes 177 Alaska Native tribes, 154 village Native corporations and
nine regional Native corporations established pursuant to the Alaska
Native Claims Settlement Act (ANCSA), and nine regional nonprofit
tribal consortia that contract and compact to administer federal
programs under the Indian Self-Determination and Education Assistance
Act. The mission of AFN, among other things, is to advance and enhance
the political voice of Alaska Natives on issues of mutual concern.
The importance of forest management for Alaska Native communities
cannot be overstated. Our forests play a critical role in the lives of
Alaska Native communities, providing a source of subsistence and
cultural practices and providing economic opportunities in communities
challenged by their remoteness and high cost of living. Effective
forest management is essential to preserve these Native-owned
forestlands for future generations.
The Tribal Forest Protection Act (TFPA) is an important tool that
allows Native communities to participate in the stewardship of federal
forest lands adjacent to Native lands, but it has faced several
challenges that have limited its effectiveness, particularly for Alaska
Native communities.
The original TFPA, while well-intentioned, did not fully account
for the unique conditions and needs of Alaska Native communities. As
you know, ANCSA transferred more than 44 million areas into Alaska
Native ownership, with the land to be held by Alaska Native
Corporations for their communities. The forestland owned by Alaska
Native Corporations is in every respect ``Indian forestland,'' but
Congress neglected to include these Alaska Native lands within the
scope of the TFPA's definition of this term.
In 2023, in testimony before the Senate Committee on Agriculture,
Nutrition and Forestry, Angela Coleman, Associate Chief of the U.S.
Forest Service, stated that ``[c]limate change, wildfire, and other
natural disturbances do not respect land management boundaries;
therefore, we need policies and management approaches . . . that remove
barriers and allow for shared stewardship and cross-boundary
management.'' Unfortunately, in Alaska, the lack of clear definitions
that incorporate Alaska's model of self-determination and land
ownership has hindered our Native communities' ability to engage in
shared-stewardship activities to support ``shared stewardship and
cross-boundary management'' of our forests.
Our inability to work with the Federal Government to support shared
stewardship of our forests does not stem from a lack of interest on the
part of Alaska Native landowners or the U.S. Forest Service. In fact,
the U.S. Department of Agriculture's Natural Resources Conservation
Service acknowledges that, ``[a]s the largest private landowners in the
state, Alaska Natives play a critical role in implementing USDA
conservation programs on the ground. . . . This share success is built
on a foundation of locally-led partnerships.''
The TFPA as originally enacted undermines the ability of Alaska
Native landowners to partner with the Federal Government--even in the
Nation's largest National Forest, the Tongass--to protect and manage
forestland from wildfire threats, pest infestations, and other forest
health issues. I would call to your attention the fact that well over 2
million acres of forestland in Alaska has been affected by a spruce
beetle outbreak that was initially detected in 2016. While the U.S.
Forest Service recommends a range of management measures to reduce
beetle damage--such as removing windthrown trees or thinning or pruning
trees--our Alaska Native landowners are powerless to work within the
framework of the TFPA to address this outbreak.
Forests in Alaska are increasingly at risk from wildfires. Even the
Tongass National Forest, a temperate rainforest, is experiencing more
dry weather. Alaska Native Corporations, such as Sealaska Corporation,
maintain silviculture programs, and their crews are well-equipped to
assist with fuel treatment projects on nearby federal lands. S. 4370
could enable Alaska Native Corporations, like Sealaska, to hire more
forest partnership crews, thereby increasing internal capacity. This
would facilitate closer collaboration with USFS silviculturists to
rethink cedar stand prescriptions for the growth of future cultural use
wood. Moreover, having a larger pool of work would help promote the
development of local crews, which has historically been a challenge.
S. 4370 addresses these critical issues and represents a
significant step toward ensuring that all Native communities, including
those in Alaska, can fully utilize the TFPA to protect and manage their
forest resources. Specifically, S. 4370 includes the following key
provisions:
1. S. 4370 expands the definition of ``Indian forest land or
rangeland'' to include lands held by Alaska Native
Corporations. This change is crucial, ensuring that ANCSA lands
will be better protected from threats originating from federal
lands.
2. S. 4370 strikes the requirement that Indian lands must
border or be adjacent to U.S. Forest Service or Bureau of Land
Management lands, allowing for greater flexibility in
protecting and managing tribal resources.
3. S. 4370 authorizes projects not just on federal lands, but
also on Indian forest land or rangeland. Among other benefits,
this change supports management efforts that both protect
tribal resources from threats that may originate on federal
lands while also protecting federal land from threats that may
originate on Native lands.
4. Additionally, S. 4370 authorizes the funding necessary for
the implementation of these projects.
I would also like to highlight that S. 4370 aligns with President
Biden's Executive Order on Reforming Federal Funding and Support for
Tribal Nations to Better Embrace Our Trust Responsibilities and Promote
the Next Era of Tribal Self-Determination, issued on December 6, 2023.
This Executive Order underscores the Federal Government's commitment to
improving the funding mechanisms and support structures for Tribal
Nations, recognizing the importance of self-determination and effective
stewardship of natural resources.
By providing clear funding for forest management, S. 4370 directly
supports the goals of the Executive Order. This alignment demonstrates
a comprehensive approach to fulfilling the federal trust responsibility
and promoting Native self-determination.
S. 4370 also aligns with the Joint Secretarial Order No. 3403 on
Fulfilling the Trust Responsibility to Indian Tribes. Secretarial Order
No. 3403, issued by the Secretaries of Agriculture and the Interior,
emphasizes the federal commitment to co-stewardship of federal lands
and waters with tribes. This Secretarial Order directs federal agencies
to incorporate tribal expertise and Indigenous knowledge into federal
land and resource management decisions, ensuring that tribal interests
are safeguarded and their contributions are valued in stewardship
activities.
The co-stewardship principles outlined in the Secretarial Order are
enhanced through S. 4370 by promoting collaborative management of
federal lands and by ensuring that Native communities have a role in
land and resource management.
In conclusion, S. 4370 is a much-needed update to the TFPA and
addresses unique challenges faced by Native communities through
partnerships with the Federal Government. S. 4370 also provides the
tools and resources necessary for effective forest management, which
will benefit our tribal communities and ultimately benefit all
Americans. On behalf of the Alaska Federation of Natives, I urge this
Committee to support and advance this legislation. Thank you for the
opportunity to testify today, and I am happy to answer any questions
you may have.
Quyana, Gunalcheesh, Haw'aa, Baasee, Taikuu, Thank you.
The Chairman. Thank you very much for all of your
testimony.
I will start with Ms. Goodluck. How does DOI currently
manage Indian forests or range lands under TFPA?
Ms. Goodluck. As currently enacted, BLM does not have the
authority to manage Indian forest lands or range lands. That
would change with the amendments. The S. 4370 amendments would
then open up tribal trust lands for BLM to be able to either
manage co-jointly with their lands and tribal lands or
sometimes there might be a situation where it would just be
tribal lands.
The Chairman. Thank you very much.
Mr. Crockett, what impacts would expanding TFPA lands to
include any Federal lands with special geographic, historical,
or cultural significance to a tribe have on existing BLM
practices?
Mr. Crockett. Thank you for the question, Chair Schatz.
The removal of the adjacency requirement would enable more
tribes to have access to TFPA projects. We think that is a
benefit for sure.
Tribes that don't have access to lands would be able to
have more tribal input. We support the intent to enable tribes
to do more work with the new language around special cultural
and geographic responsibilities.
We would like to discuss the criteria on what it would take
to get to success when it comes to the authority that the BLM
or the BIA has for the jurisdiction over tribal authorities,
and then clarify those roles.
The Chairman. What do you mean by that?
Mr. Crockett. So as it stands now, the BIA has jurisdiction
authority over tribal trust lands. We want to work with BIA and
not overstep our bounds over jurisdictional authorities.
The Chairman. Is this something that you guys need to work
out? Let's assume we enact this. Do we have to clarify this in
statutory language, or is this something that you think agency
to agency can be worked out?
Mr. Crockett. Probably agency to agency on the special
geographic, historical and cultural significance.
The Chairman. But let's be in touch as this piece of
legislation moves. Because if you have a framework, it is
probably smart for us to at least clarify legislative intent,
if not in the plain language of the text, then through our
report or any other way to indicate what we have in mind. I
would sure hate for us to pass this and then you are kind of
stuck in a negotiation or a kind of wrangling situation.
So the more of this we can clarify in statute, the better.
Mr. Crockett. Yes.
Let me add one piece. I think the important role, as we
engage with tribes, consultation would be an important piece.
Because what we don't want to have is have the Forest Service
be the arbiter between tribes, multiple tribes that have a
claim to the geographic authorities. So we would like to work
that out through consultation with tribes.
The Chairman. Yes, you don't want to purchase that problem
for your own agency. I understand.
Vice Chair Murkowski?
Senator Murkowski. Mr. Chairman, thank you for that.
I want to do a follow-up here with Mr. Crockett. I think,
as I listened to our witness from the Department of Interior, I
hear pretty strong support for S. 4370. You clearly stated, Ms.
Goodluck, that DOI supports the bill.
But it is not very clear what the USDA Forest Service
position is on it. Quite honestly, I am really disappointed.
Being here today we have had so many years of discussion, I
have, my staff, tribal ANC leaders across the State. We have
talked about co-management of Federal forest lands.
So I too want to make sure that we are not setting
something up here where we have divergent views or opinions as
to how this is all going to work.
I want to ask you a couple of questions and point out what
I think is first of all just plain old factual error in your
testimony. You go on to say that Forest Service only has a
presence in southeast Alaska, and therefore the TFPA issues are
confined to the Tongass. But you and I both know that that is
not accurate. We have two national forests in the State of
Alaska. The Chugach is located in south central, spans 5.4
million acres, neighbors the Chugach and the Cook Inlet
Regional Corporation.
So I am pretty certain you agree with that, and that was
just an oversight. So it is not that the Forest Service only
has a presence in southeast Alaska.
Mr. Crockett. That is accurate. I am not sure how that got
misconstrued, but yes.
Senator Murkowski. Correcting the geography here.
To more important things, and I want to talk about the
change to the definition of Indian forest or range land again
to include land held by an ANC. This is important because it
does provide that clarity that the TFPA can be used by ANCs
which we have all acknowledged controls over 44 million acres
of land in Alaska.
So I just want to make clear that these forest lands owned
by ANCs are in every respect Indian forest lands and I want to
know whether USDA agrees with that.
Mr. Crockett. Yes, let me help clear up any uncertainty
between either my written testimony or my oral statement. The
Forest Service supports ANCs having access to the Tribal Forest
Protection Act. Clear statement.
We also support removing the adjacency requirement.
Senator Murkowski. I am going to get to adjacency in just
one second here. Let me ask one more question on ANCs. Does the
USDA Forest Service support including ANCs and ANCSA lands
specifically in the definition of ANCSA lands, so that the ANCs
can use TFPA to do the forest management work both on Federal
lands and on their own ANCSA lands?
Mr. Crockett. Yes.
Senator Murkowski. Great. So let me then ask about, because
this is where, to the Chairman's point here, I want to make
sure that we don't have any ambiguity. Our bill removes the
requirement that projects occur on Federal lands bordering or
adjacent to tribal lands. What your testimony suggests to me,
and this is where I would like your clarification, it suggests
to me that you want to replace adjacency or bordering with what
you are calling reasonable proximity.
So I want to ask if that is a correct assumption, because
where I am trying to go with this is to remove ambiguity
pertaining to proximity and recognize that you have resources
and values on Federal land that the tribes want to manage.
So I think Interior gets it on this. The question, Mr.
Crockett, is whether or not USDA Forest Service supports
removing the border and adjacency requirement for TFPA projects
on Federal lands?
Mr. Crockett. We support removing it and replacing it with
special geographic, cultural, and historic significance. Then
we would want to work with the Committee on the criteria to get
to success with that.
Senator Murkowski. Again, criteria to get to success, I
don't want Forest Service to have different criteria than
Interior. Because it sounds to me, and maybe I shouldn't assume
this, but Ms. Canard Goodluck, are you guys okay with where the
language is now in the bill? Does that give you the process or
the necessary information that you need to operate? Or do you
need additional criteria?
Ms. Goodluck. I don't know if criteria is the right word. I
think we are comfortable with where the amendment lies right
now. I think what I said in my testimony about clarifying the
BIA's role is that BIA currently manages trust lands. This
would allow BLM and USDA.
So I think that as Chairman Schatz mentioned, this is a
conversation that can be interagency that we can have, and if
we wanted to clarify intent, I think I am happy to have our
team help arrange a conversation with your staff and other
Committee members to clarify the intent. But I think we are
comfortable with the language as it is now.
Senator Murkowski. Well, what I did hear you say, Mr.
Crockett, is that Forest Service does support removing the
bordering or adjacency requirement for the TFPA projects on
Federal lands. You said yes to that.
Mr. Crockett. Yes. That is correct.
Senator Murkowski. So I think that is important to get on
the record.
So Mr. Chairman, I am out of time. I am going to want to
come back and ask Mr. Mallott a question after our colleagues
have gone.
The Chairman. Senator Lujan?
Senator Lujan. Thank you, Mr. Chairman. I know everyone
listening today who is paying attention to this important
hearing, there should be no question of the broad support that
Vice Chair Murkowski has on this legislation. I very much
appreciate her questioning to get these details correct, and
the Chairman. We want to get there. So I certainly hope that
everyone involved works to do that, and works to do that in a
timely fashion, so that this legislation can be ready to be
sent, passed to the House and get to the President for
signature as well because of all the challenges that exist in
our communities.
So I want to thank the Vice Chair again for this.
Governor Phillips, thank you again for being here. I very
much appreciate in your testimony your acknowledgement of those
who came before us. The decades that you have spent on this
important issue, but the wisdom that we have all benefited from
as well, from those who came before us. I have been very proud
to work with you, with the council, with Senator Heinrich to
support and advance this legislation. I want to thank my
colleagues as well and the Chairman and the Vice Chair for
noticing this today as well.
Governor, would you share with us what a bosque is, and why
restoration of the bosque is vital to the pueblo?
Mr. Phillips. Thank you, Senator. Mr. Chairman, Vice Chair,
and Committee members. Bosque is a term that is used for a
riparian area. For Ohkay Owingeh, it is [phrase in Native
tongue], which is the prosperous life, it is the connection
with which the pueblos I united with the river, and its
overbanking. There are a lot of activities, cultural activities
that are connected.
What is happening with our bosque is that the river's bed,
as it was bulldozed and managed now by a dam, has driven a lot
of those species and those deities that are in there that we
celebrate and that we often carry into our ceremonies, that is
what it is. It is a connection to our actual lives. This water
is what we are made of, and our relationship to Mother Earth.
That connectivity that often go to to celebrate and live
individual lives and become people of our culture, that is what
bosque means to us.
Senator Lujan. I appreciate that very much, Governor. What
is clear to me is that there are provisions included in this
legislation that support the restoration of the Rio Chama and
the bosque, which I appreciate and I applaud.
Ms. Goodluck, thank you for coming today as well. In your
testimony, you state that ``The bosque areas within Ohkay
Owingeh's lands were altered as a result of flood control and
irrigation projects constructed by the United States.:'' Ms.
Goodluck, as you heard in the testimony from Governor Phillips
today, the bosques on the Rio Chama and Rio Grande are
essential to the pueblo's way of life.
Would this legislation allow Ohkay Owingeh to, as part of
its water rights, begin the restoration of the Rio Chama bosque
in addition to expanding irrigation and drinking water access?
Ms. Goodluck. Yes, it would.
Senator Lujan. I appreciate that very much.
After this legislation become law, which I hope will happen
during this Congress, I look forward to working with you in the
years to come to restore the health of the river and the bosque
for the pueblo and all others in that community as well.
Mr. Crockett, I want to thank you as well for highlighting
the importance of tribal co-stewardship in your testimony, and
some of the challenges that we are seeing today. Fires don't
care what lines exist or what fences is there. We have seen the
devastation from them. If you have traveled to these
communities, you have seen it.
The hardship that you see in families' eyes when you are
talking to them, what you feel from them when they have lost
everything, think about that one precious photo that you may
have of a grandma or grandpa that you don't have it digitally
maybe, it is the only thing you have, but it tells a story,
something that was passed on to us, it is gone.
Investments in the health and resilience of our forests not
only reduces the risk of severe wildfires, it promotes the
important bonds that many tribes have to the land and to
cultural resources.
President Padilla, why is it important to expand the TFPA
authority to allow tribes to protect and restore their own
forests and range lands, and not just those on Federal lands to
protect against wildfires.
Ms. Padilla. I think it is important to cross the boundary
as we are doing it. Yes, it is important; we do want to do work
on the Forest Service lands that are near our reservation. But
is helpful to do these as landscape scale treatments, so work
on our side that is complementary to our work as we are going
across the border, I think that is really important. That is
the whole point, is to create defensible space.
Sometimes it crosses the boundaries, just as everybody has
mentioned here. It is important to do treatments on both sides
to really armor up those boundaries.
Senator Lujan. I appreciate that.
In addition to that, Madam President and Vice Chair
Murkowski, I am very appreciate of the kinds of local, small
businesses that might launch and may get to go and manage more.
Certainty for a small business, for someone that maybe owns a
chainsaw and an old pickup right now, maybe they are going to
be able to buy two or three, hire a few people, modernize that
truck and get a trailer, be able to clear a little bit more and
share and expand. I just see the immense upside of this as
well.
I thank all the panelists for their time. I thank the Chair
and Vice Chair again for today's hearing. Thank you.
The Chairman. Vice Chair Murkowski.
Senator Murkowski. Thank you, Mr. Chairman. And I thank the
Senator for that comment.
I want to direct this to you, Mr. Mallott. You are
intimately familiar with the TFPA and forest management, you
have been working on it for many, many years at AFN to ensure
that the Native communities in Alaska and elsewhere can utilize
the TFPA.
I think what Senator Lujan has said is worth noting, the
economic opportunities that can be made available, the social
and economic benefits if ANCSA lands are made eligible under
TFPA. Can you just speak a little bit more to that, what you
might anticipate as well perhaps some of the environmental
benefits to Federal forest lands in Alaska? You mentioned what
we are seeing with invasive species, the spruce bark beetle,
some of that, and how that is impacting maybe not so much in
the Tongass but certainly up in the Chugach.
So if you can just speak to not only the socioeconomic
benefits, but the environmental benefits of being able to do
what we are proposing under this legislation?
Mr. Mallot. Gunalcheesh, Senator Murkowski, for that
question. I also want to echo Senator Lujan's statement that
this bill does have opportunities for economic and also for
expansion of our own capacity within our communities.
As I mentioned, SeaAlaska has a really large silviculture
program. For them and for us as Tlingit people, cedar is a
valuable tree for us. So if we could help co-manage or enter
into agreements with the Forest Service to help manage our
cedar groves and expand that resource for us for both our
cultural and also economic, in our communities. Because you
know, if you look a Junea, with all the new totem poles going
up, that is a cultural benefit for us. And of course, we
protect the cedar trees.
I also want to recognize that as we look at our
communities, the economic ability and jobs in our communities
are tough. So if our ANCs or landowners could enter into an
agreement with the Forest Service, even BLM, they could build
on those, they don't have a lot of BLM lands up there. Our
communities want to manage their lands, and if we could enter
into agreements with our ANCs and our tribes to manage adjacent
Federal lands, it would give them an opportunity for
communities to help to engage in that.
So you could have local participation from a community that
is engaged with a fire boundary through adjacent BLM or Forest
Service, Chugach lands. As you know, Senator Murkowski, you
could drive through hundreds of acres of lands and see spruce
bark beetle kill everywhere. That is something that I think we
need to address.
A couple of years ago, my mom's home town, Rampart, was
very close to being evacuated for a forest fire. And that is
very, very stressful to watch that, and hear family go through
that. So the ability for our communities to engage in
mitigation for that, hire local help for that, goes a long way.
Senator Murkowski. Thank you.
Mr. Chairman, I think you can hear, whether it is from
Alaska and our lands up north to the lands as far south as New
Mexico and Arizona, this is an issue that I think there is
clearly common ground. We would like to work with our agencies
to make sure that this partnership really is meaningful to
achieve not only the environmental benefits that we are
seeking, but also the social and economic benefits.
The Chairman. Thank you very much.
If there are no further 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
our witnesses for their time and their testimony today.
Senator Murkowski. Mr. Chairman, just before we close, I
want to acknowledge my Committee intern, Nyche Andrew. She is
going to be completing her internship with us. She is Inupiaq,
she is Yup'ik, she is from Anchorage. She is attending college
at Yale. She has been a great addition to us here on the
Committee. We want to thank her for her work and for her
participation.
The Chairman. Thank you very much. We appreciate her work
as well.
I want to thank everybody for being here. This hearing is
adjourned.
[Whereupon, at 3:09 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of the Climate and Wildfire Institute and The
Stewardship Project
The Climate and Wildfire Institute (CWI) and The Stewardship
Project, a project supported by CWI, wish to express strong support for
S. 4370, the Tribal Forest Protection Act Amendments Act of 2024.
Through its amendment of the Tribal Forest Protection Act (TFPA), this
legislation would promote greater Indigenous stewardship of Federal and
Tribal forest and rangelands.
The TFPA is a critical tool for fostering collaboration between
Tribes and federal agencies to protect and enhance forested lands. By
allowing Tribes to take the lead in proposing and implementing forest
management projects, the TFPA not only helps safeguard Tribal lands but
also contributes to the overall health and sustainability of the
nation's forests. However, several aspects of the statute could be
amended to improve how projects are implemented and to further promote
Tribal sovereignty.
The TFPA's adjacency requirement states that in order for a project
to be eligible, the lands where the project will take place must
border, or be adjacent to, federal lands managed by the U.S. Forest
Service or the Bureau of Land Management (BLM). However, many Tribes
have an interest in protecting and restoring sacred sites and cultural
landscapes that are located on federal lands that do not border Tribal
lands, in part because of the dispossession of Tribal people from their
ancestral territories. By removing the adjacency requirement, this
legislation would provide Tribes with more autonomy to protect their
culturally significant resources.
The bill would also expand program eligibility to allow work on
Indigenous forest lands or rangelands. Currently, the TFPA only allows
projects on federal lands. This limitation not only hinders the
effectiveness of the Tribal projects, but indirectly disincentivizes
the stewardship of Tribal lands. We strongly support the expansion of
TFPA to include Indigenous forests and rangelands.
Finally, this legislation expands the definition of ``Indian forest
land or rangeland'' land to include lands held by Alaska Native
Corporations (ANCs). Under the Alaska Native Claims Settlement Act
(ANCSA), Native land in Alaska was conveyed to Alaska Native
Corporations to manage for their shareholders rather than being placed
into trust or restricted status. The TFPA's current definition of
``Indian forest land or rangeland'' prevents approximately 44 million
acres of land in Alaska from protection. Like federally recognized
tribes, ANCs have deep historical and cultural connections to their
lands. The forests and natural resources on these lands are integral to
the cultural, spiritual, and economic well-being of Alaska Native
communities.
The Tribal Forest Protection Act Amendments Act of 2024 makes
commonsense reforms to the TFPA that improve Tribal sovereignty and
enhance stewardship of federal and tribal lands. We thank Senator
Murkowski for introducing this critical legislation and urge its
passage.
______
Prepared Statement of Tanya Trujillo, New Mexico Deputy State Engineer
Mr. Chairman Bentz, Vice Chair Kiggans, Congressman Lujan, and
members of the Committee, I am Tanya Trujillo, New Mexico Deputy State
Engineer. My agency, the Office of the State Engineer, is responsible
for the administration of water rights in New Mexico. The State
Engineer has authority over the supervision, measurement,
appropriation, and distribution of all surface and groundwater in New
Mexico, including all interstate streams and rivers. I appreciate the
opportunity to submit this testimony to you today and provide comments
on behalf of the State of New Mexico in support of Senate Bill 4505,
the Ohkay Owingeh Rio Chama Water Rights Settlement Act of 2024.
S. 4505 will resolve Ohkay Owingeh's water rights claims in the Rio
Chama Stream System by authorizing, ratifying, and confirming a
comprehensive agreement among the State, Ohkay Owingeh, the City of
Espanola, the Asociacion de Acequias Nortenas de Rio Arriba, the Rio de
Chama Acequias Association, La Asociacion de las Acequias del Rio
Vallecitos, Tusas, y Ojo Caliente, El Rito Ditch Association,
representing 80 acequias and community ditches. This legislation offers
a historic opportunity to authorize funding for Ohkay Owingeh to secure
and develop water sufficient to support the Pueblo's needs, while also
protecting scarce water supplies, existing water uses, and acequia
culture in the heart of northern New Mexico.
For centuries, Ohkay Owingeh irrigated along the banks and fertile
lands along the river near the confluence of the Rio Chama and Rio
Grande. Over the last century, the construction of large reservoirs,
the channelization of the river, increased upstream uses, and climate
change have greatly reduced the Rio Chama water supply.
There are more than 80 acequias in the Rio Chama Stream System. The
three oldest acequias in New Mexico divert from the Rio Chama just
outside Ohkay Owingeh's grant boundary, but Ohkay Owingeh has time
immemorial water rights, making it the most senior water user in the
basin. The Acequias and the Pueblo are all suffering from diminished
surface water supply and Ohkay Owingeh often struggles to receive
enough water to farm their land at the bottom of the Stream System.
Litigation over the Rio Chama water rights of Ohkay Owingeh has
been ongoing for nearly thirty years. The federal court adjudication
was filed in 1969 (State of New Mexico, ex rel. State Engineer v.
Aragon, 69-cv-07941 (D.N.M.)). Recognizing the need for cooperation
among the water users in the Stream System and the limited water
resources available, the parties structured this settlement to protect
existing uses and scarce resources.
The Pueblo, the State, and the Acequias developed an administrative
agreement to share and curtail water in times of shortage in order to
increase wet water supply and extend the irrigation season. The Pueblo
has agreed to give up its right to make a priority call on junior non-
Pueblo water users, providing security to all water rights holders in
the region. Additionally, the legislation will provide Ohkay Owingeh
with crucial funding for projects that will restore the culturally
significant Rio Chama Bosque, which will support the health of the
river and the ecosystem as a whole.
As a fund based settlement, Ohkay Owingeh is seeking federal
funding in the amount of $818.3 million for purposes related to
restoring and maintaining the Rio Chama and Rio Grande bosques,
developing water supply and wastewater infrastructure, acquiring water
rights or water supplies, and managing and administering Pueblo Water
Rights. Importantly, authorizing this fund-based settlement provides
the Pueblo flexibility to determine the scope and design of future
projects and infrastructure.
The State of New Mexico has committed to seek State funding in the
amount of $98.5 million to the Acequias for projects and infrastructure
needs, and $32 million to the City of Espanola for the development of
safe drinking water production wells.
Mr. Chairman Schatz, Vice Chair Murkowski, and members of the
Committee, the State of New Mexico asks you to support S. 4505. If
approved, this legislation will create a mechanism for cooperation and
coordination among Ohkay Owingeh and the State regarding water rights
administration, thereby avoiding jurisdictional conflicts and allowing
for comprehensive administration across the stream system. The funding
authorized by the Settlement Act will contribute to Ohkay Owingeh's
water security and provide significant economic benefits and employment
opportunities to the Pueblo and surrounding communities. There will
also be broader statewide economic benefits because the scope of these
projects will create demand for additional labor, construction, and
technical expertise from New Mexico contractors. The State of New
Mexico enthusiastically supports this legislation and believes S. 4505
is a key tool in addressing critical water needs of Ohkay Owingeh and
protecting the way of life in northern Mexico for generations to come.
I thank you for your consideration of this issue and stand ready to
provide any support necessary to encourage the passage of this critical
legislation.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
John Crockett
Question. S. 4370 would amend the Tribal Forest Protection Act
strike the ``adjacency'' requirement for National Forest System lands,
replacing it with ``special geographic, historical, or cultural
significance'' to an Indian tribe. While your written testimony
acknowledges that the existing adjacency requirement limits
participation for Tribes, it did not endorse the proposed framework and
instead proposed a ``proximity'' requirement. Please elaborate on how
proximity, and not ``special geographic, historical and cultural
relationships,'' could achieve the bill's goals, and include specific
examples of how this alternative framework could work in practice.
Answer. The Tribal Forest Protection Act (TFPA) currently limits a
Tribe's ability to perform risk reduction and restoration work on
Bureau of land Management (BLM) and Forest Service land to those Indian
forestlands or rangelands under the jurisdiction of the Tribe that
border on or are adjacent to the public land. Although there are legal
and operational reasons for this requirement, the Forest Service
recognizes that it limits the number of eligible Indian forest lands
and rangelands. The bill proposes to replace the ``borders on or
adjacent to'' requirement with the criteria that the BLM or Forest
Service land have a ``special geographic, historical, or cultural
significance'' to an Indian Tribe. Although we understand and recognize
that this language is contained in Title IV of the Indian Self-
Determination and Education Assistance Act, that authority differs in
important ways from the Tribal Forest Protection Act. To clarify what
was said orally, there are legal and implementation considerations with
this language in the TFPA because the conjunction ``or'' means there is
no temporal Tribal sovereign nexus requirement between the Indian
forest land or rangeland and the public land. Additionally, there are
likely competing Tribal interests and equities over the same landscape,
particularly when there are no clear criteria for defining what point
in history or what type of evidence suffices for meeting the cultural
significance requirement. The bill also expands eligibility to include
Alaska Native Corporations (ANCs) lands, which the Forest Service
supports. There are likely similar competing interests and equities
between ANCs, Native Village Corporations, and Alaska Native Villages
over the same landscape under the proposed bill language. As an
alternative, the Forest Service respectfully offered two alternatives
for consideration: (1) replace the conjunction ``or'' with ``and''; or
(2) change the language to ``reasonable proximity.'' Both alternatives
graft a temporal Tribal sovereign nexus requirement to the BLM or
Forest Service land, thus decreasing the legal vulnerability and
limiting the competing Tribal interests over the same landscapes. The
Forest Service welcomes the opportunity to work with the Committee on
this or other language to help achieve the bill's goals.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Tracy Canard Goodluck
Question 1. Please describe how DOI interprets the proposed
criteria of ``special geographic, historical, or cultural significance
to the Indian tribe'' in Section 2(3)(B)(l) of S. 4370 to apply to
Alaska Native Corporations.
Answer. The Bureau of Land Management (BLM) could interpret the
criteria based on Alaska Native Claims Settlement Act (ANCSA) regional
boundaries when interpreting that section of the bill and on ANCSA
Section 11 withdrawal areas for villages, combined with Tribal
consultation.
Question 2. We are aware that USDA has concerns about application
of the above-cited criteria, specifically that it may lead to conflict
among Tribes with competing claims over lands with such significance.
At the hearing, you indicated that DOI has an administrative process
that could potentially be used by USDA to address potential conflict.
Please elaborate.
Answer. If S. 4370 is enacted, the BLM would adapt the current
administrative process as needed to address potential Tribal conflict
over the same landscape. Currently, the BLM's administrative process
for evaluating a Tribal Forest Protection Act (TFPA) project is
officially initiated when an Indian Tribe requests in writing for the
BLM to enter into an agreement or contract to carry out a project on
BLM-managed lands to protect Indian forest land or rangeland. Under
this process, the BLM evaluates whether TFPA project proposals meet the
following criteria: (1) the Indian forest land or rangeland is held in
trust or is in restricted status by the United States for the Tribe
submitting the proposal; (2) the Indian forest land or rangeland
borders on or is adjacent to the BLM-managed land; (3) the BLM-managed
land poses a risk of fire, disease, or other threat to the Indian
forest land, rangeland, or community, or is in need of land restoration
activities; and (4) the BLM-managed lands that will be treated involve
a feature or circumstance unique to that Indian Tribe (including treaty
rights or biological, archaeological, historical, or cultural
circumstances).
The BLM must respond to the Indian Tribe's request within 120 days
and indicate the steps that will be taken, including initiation of any
necessary review under the National Environmental Policy Act (NEPA) or
of the potential of entering into an agreement or contract to implement
the project. If the BLM denies a request, the Bureau must issue a
notice of denial to the Indian Tribe that: (1) identifies the specific
facts that caused the denial and the reasons that support the denial;
(2) identifies potential courses of action to address specific issues
that led to the denial; and (3) includes an invitation for consultation
to develop a strategy for protecting the Indian forest land or
rangeland. If a project proposal does not meet the specific TFPA
criteria, BLM policy directs the applicable field manager to work with
the Tribal liaison to explore other opportunities to address fire,
disease, or other threats.
Question 3. Please describe how S. 4370 would impact the Bureau of
Land Management's existing practices under the Tribal Forest Protection
Act.
Answer. S. 4370 creates the potential for the BLM to receive
proposals from ANCSA corporations in Alaska, whose lands are not
eligible under the current statute. The BLM has not denied any TFPA
proposals due to failure to satisfy the bordering or adjacency
requirement, but the removal of that requirement should broaden
eligibility in evaluating whether proposals qualify under TFPA. S.
4370's expansion of TFPA authority to include BLM awarding contracts or
agreements for treatments on Indian forest and rangelands would be a
new responsibility for the BLM that is currently conducted and managed
by the BIA as trustee.
Question 4. Please describe whether and how the Bureau of Indian
Affairs' administration of Tribal forest lands under the National
Indian Forest Resources Management Act would be impacted if S. 4370
were enacted, and if so, how administration of the same Tribal
landscapes by multiple federal agencies could be addressed in practice.
For example, what responsibilities or practices would S. 4370 create
for the BIA, and how would they align with the current
responsibilities/practices of Forest Service and BLM?
Answer. The TFPA has a 120-day deadline in which the BLM must
respond to a Tribe's proposal to treat a forest or rangeland condition
on BLM-managed land that poses a risk to the Tribe's forestland or
rangeland or Tribal community. The TFPA provides for the Tribe to
conduct the treatment on BLM-managed land through a contract or
agreement. The TFPA does not provide for unique or additional forest
management authority for Indian lands administered under the National
Indian Forest Resources Management Act; however, for BLM funded
projects on Tribal forest lands, the BIA would be consulted to ensure
the project is aligned with the Tribe's forest management plan under
the National Indian Forest Resources Management Act (NIFRMA). It is
unclear whether S. 4370 would create any additional responsibilities or
practices for the BIA because it manages Indian forest land as trustee
under NIFRMA and because the TFPA activities will affect trust forest
or rangelands assets.
Question 5. How does the water sharing schedule described in S.
4505 ensure equitable water security in times of shortage? In addition,
please describe how enacting S. 4505 could protect against priority
calls and help users in the basin.
Answer. S. 4505 would ratify and confirm the Ohkay Owingeh Rio
Chama Water Rights Settlement Agreement. Article 8.1 of the Agreement
spells out the standards and procedures for sharing water during times
of shortage between Ohkay Owingeh and 89 non-Indian acequias
(irrigation ditches), and among the acequias themselves.
Shortage sharing consists of four principal components: (1) Ohkay
Owingeh agrees not to assert its acknowledged senior water rights in
the Rio Chama Basin; (2) acequias agree not to assert priorities of use
among themselves; (3) water rights will not be administered according
to priorities of use, but rather according to an annual, enforceable
negotiated water sharing schedule, so called Alternative
Administration; and (4) the water sharing schedule will be based on
equitable considerations, taking into account the fact that Ohkay
Owingeh and three acequias on the Ohkay Owingeh Grant lands have senior
water rights. Alternative Administration means there will be no
priority calls by any party to the settlement agreement and there are
enforcement mechanisms in place to ensure violations cannot occur with
impunity. The goal is to ensure the available water supply in the Rio
Chama Basin benefits the greatest number of users during the key months
of irrigation and is based on practices that have been in place and
have worked well for several years already.
Water users who do not sign the settlement agreement may
nonetheless benefit from shortage sharing by participating in the
process as cooperating diverters. Also, acequias that sign the
agreement but whose curtailment of diversion would be futile because
their source of supply does not contribute beneficially to the flows of
the Rio Chama at the time the shortage sharing schedule goes into
effect, as determined by the Water Master, in consultation with Ohkay
Owingeh, the Rio Chama Acequias Association, Acequias Nortenas, are
excluded from the schedule and curtailment of water use.
The shortage sharing provisions were negotiated under the guiding
principle embraced by Ohkay Owingeh that working with neighbors to find
equitable ways to share, manage and enhance water supplies now and for
the future will benefit not only the Pueblo but and all water users in
the Rio Chama Basin. As water supplies shrink, it is critically
important to have good working relationships in place now to avoid
disagreements in the future about how to allocate water.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Benjamin Mallott
Question 1. Please describe how including Alaska Native Corporation
lands in the definition of ``Indian forest land or rangeland'' in S.
4370 is a necessary modification of existing law under the Tribal
Forest Protection Act. Specifically, please include in your response
how such a change will benefit federally-recognized Tribes in Alaska,
and describe the types of forest management activities ANCs would
potentially undertake for their benefit.
Answer. Including Alaska Native Corporation lands in the definition
of ``Indian forest land or rangeland'' in S. 4370 will enable both
Alaska Native Corporations and the Federal Government to pursue shared-
stewardship of forest resources throughout the State of Alaska, as well
as collaborative approaches to land management issues and emergencies
that may arise. We have been seeking inclusion in the Act since prior
to enactment of the original law, so this amendment is long overdue. S.
4370 ensures that Alaska Native owned lands in Alaska are not excluded
from opportunities provided today to Tribally-owned lands in the Lower-
48 states and only minimally in Alaska.
As you know, the Alaska Native Claims Settlement Act of 1971
(ANCSA) transferred more than 44 million acres of federal land to
Alaska Native Corporations to support the economic, social, and
cultural well-being of the Alaska Native people. Unfortunately, the
Tribal Forest Protection Act (TFPA), as originally enacted, excludes
ANCSA lands, hindering the ability of Alaska Native Corporations to
engage in shared-stewardship activities with their primary neighbor,
the Federal Government. This does a disservice to Alaska's Native
communities, to our federal neighbors, and to other forest stakeholders
who rely on our Alaska Native Corporations as land managers within a
unique and important forest environment.
During the hearing on S. 4370, I noted that Angela Coleman,
Associate Chief of the U.S. Forest Service, testified last year (in a
hearing held by the Senate Committee on Agriculture, Nutrition and
Forestry) that ``[c]limate change, wildfire, and other natural
disturbances do not respect land management boundaries; therefore, we
need policies and management approaches . . . that remove barriers and
allow for shared stewardship and cross-boundary management.'' In my
testimony, I called attention to the fact that well over 2 million
acres of forestland in Alaska has been affected by a spruce beetle
outbreak alone. Forestland throughout the state is increasingly
impacted by wildfires. If S. 4370 is enacted, an Alaska Native
Corporation would be able to enter into an agreement with its federal
neighbor--the U.S. Forest Service (USFS) or the Bureau of Land
Management (BLM)--to help manage spruce beetle outbreaks or to reduce
fuel loads on the federal lands bordering ANCSA lands.
Additionally, land management in Alaska--as in other Western
states--is complicated by land ownership patterns that are
``checkerboarded''--with federal and Native-owned lands in some cases
quite literally alternating in a checkerboard pattern across the map.
Occasionally, federal land is isolated within Native-owned lands.
Although the Federal Government can access that land, from an
operational perspective, and for the sake of efficiency, it may make
sense for an Alaska Native Corporation to address pest or fuel load
issues on federal lands that are surrounded by Native-owned land,
particularly if the Alaska Native Corporation is planning to engage in
such activities already on their own lands. BLM and USFS should have
the ability to utilize the TFPA to achieve these goals with Alaska
Native Corporations.
You also ask specifically ``how including Alaska Native Corporation
lands in the definition of `Indian forest land or rangeland' . . . will
benefit federally-recognized Tribes in Alaska'' and to provide examples
of the types of projects Alaska Native Corporations might ``undertake
for the[] benefit'' of the Tribes.
First and foremost, I want to emphasize that S. 4370 will serve to
protect the lives of Tribal citizens. When the Tribal Forest Protection
Act was enacted in 2004, Congress recognized that fires in the summer
of 2003 had burned from federal lands onto several Indian reservations,
resulting in property damage and killing 10 people. The House Committee
on Resources observed at the time that ``this was not a first-time
occurrence.'' Congress therefore sought to enact legislation that would
``help reduce the threat of future tragedies'' by setting up a process
that allowed Indian Tribes to perform hazardous fuels reduction
operations and other forest health projects on neighboring USFS and BLM
lands. H. Rept. 108-509 (May 20, 2004).
Under ANCSA, Congress directed Alaska Native Corporations to select
land around each of more than 200 Alaska Native villages in Alaska. As
a result, with few exceptions, Alaska Native Corporations today quite
literally own the land surrounding Alaska Native villages throughout
the state. Most, if not all, of these Native Villages are home to
federally-recognized Tribes and Tribal citizens. Congress enacted the
TFPA to empower Indian Tribes to protect Tribal communities on Tribal
lands. The Alaska Native community at the time implored Congress to
include ANCSA lands in that legislation. Congress elected not to do so,
and in making that decision, Congress chose to deny access to a program
intended to save lives to the more than 200 Native communities in
Alaska.
An Alaska Native Corporation might undertake a project for the
specific benefit of a Tribal Government for a variety of reasons. For
example, an Alaska Native Corporation could agree to undertake a
project to achieve priorities shared by the Alaska Native Corporation
and the local Tribe or Tribes. At the request of a Tribe, an Alaska
Native Corporation could undertake a project that would help to achieve
priorities identified by the Tribe in consultation with the BLM or USFS
and other forest stakeholders, particularly if the Native Corporation
has the capacity to undertake the project but the Tribe does not.
However, I would expect that most projects will be undertaken for
the benefit not of the Tribe, per se, but for the benefit of the Alaska
Native village, or to protect the forest itself. This protection will
benefit the Tribe and Tribal members who are residents of the village
or who otherwise depend on the protection of the forest. For example,
in ANCSA, Congress sought to convey land to Alaska Native Corporations
to protect the continuation of Alaska Native subsistence uses on the
land conveyed. A TFPA project that protects Alaska Native forestland
from disease or fire will ensure that Tribal members can continue to
rely on that land to support their families. Congress also directed
Alaska Native Regional Corporations to identify cemeteries and
historical sites (many of which are ``sacred'' sites) to protect that
land for the Alaska Native community. Regional Corporations applied for
roughly 2,300 of these sites under ANCSA. These sites are typically
remote and, in most cases, are surrounded by or adjacent to BLM or USFS
land. A TFPA project that protects such a site from the threat of
wildfire might avoid a loss of incalculable cultural and historical
value to Tribal members.
Ultimately, S. 4370 will benefit a wide range of forest
stakeholders, including the federal government, the non-Native
residents of our villages, Alaska Native shareholders and Tribal
citizens, recreational users who share our resources, and the fish and
wildlife that depend on sound forest management.
Question 2. What is AFN's understanding of how the proposed
criteria of ``special geographic, historical, or cultural significance
to the Indian tribe'' in S. 4370 will be applied to Alaska Native
Corporations?
Answer. The TFPA includes Alaska Native Corporations as ``Indian
Tribes'' within its original definitions. S. 4370 merely expands the
definition of ``Indian forest land or rangeland'' to include ANCSA
lands. Accordingly, the proposed extension of the TFPA's scope to lands
of ``special geographic, historical, or cultural significance to the
Indian tribe'' will apply both to federally-recognized Indian Tribes
and to Alaska Native Corporations.
Your question asks specifically how the proposal to expand the TFPA
to ``special geographic, historical, or cultural significance to the
Indian tribe'' will apply to Alaska Native Corporations. I think the
answer to this question largely depends on the circumstances of
individual Alaska Native Corporations and their responsibilities as
land managers. I can imagine, for example, that an Alaska Native
Corporation might be actively engaged in mitigating wildfire threats to
isolated ``cemetery and historical sites'' within its ownership. In
doing so, it may find itself well-positioned to partner with the BLM or
USFS to address threats to related, federally-managed sites within the
same geographic area. Taking this shared-stewardship approach to the
preservation of sites of ``special geographical, historical, or
cultural significance'' might be compared, broadly, to the approach
utilized in the Tribal Heritage Grant program, which assists Indian
Tribes, Alaskan Native Corporations, and Native Hawaiian Organizations
with efforts to protect and promote their cultural heritage and
traditions, ``whether on or off the reservation.'' Arbitrary land
management boundaries should not stand in the way of federal programs
that might otherwise support a holistic approach to the preservation of
our cultural heritage.
Thank you for holding a hearing on S. 4370, and thank you for the
opportunity to address your questions and to provide additional
information to the Committee. I hope this response is helpful to you,
and I welcome any other questions you may have about this important
legislation.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Hon. Thora Padilla
Question. The 2018 Farm Bill authorized the U.S. Forest Service to
enter into 638 agreements with Tribes for Tribal Forest Protection Act
activities. Should Congress consider expanding this authority, and if
so, how would 638 expansion complement S. 4370 in practice?
Answer. Yes, the Mescalero Apache Tribe fully supports expansion of
the 2018 Farm Bill's 638 Tribal Forestry program by removing the
``Demonstration'' program designation to make the program permanent and
by adding a funding mechanism. Mescalero was one of the first Tribal
Governments to testify in support of the 638 Tribal Forestry provision
during the 115th Congress. We supported moving the Tribal Forest
Protection Act (TFPA) from stewardship contracting authority, which
treats Tribes as vendors--to the 638 model, which acknowledges the
distinct governmental status of Indian Tribes and respects tribal
sovereignty.
The current 638 Tribal Forestry program authorizes the Forest
Service and BLM to enter into self-determination contracts with Tribes
for forestry-related projects on federal lands that are adjacent to
Indian lands. The proposals included in S. 4370 would be a natural
complement to these existing authorities by permitting Tribes to work
on projects with these same land management agencies--on Indian lands
(which would help offset the significant and longstanding funding
shortfalls for tribal forest management) and throughout federal lands,
which would enable Tribes to impact landscape scale management of
federal lands to which a Tribe has a close connection.
The 638 Tribal Forestry program holds this great potential but
needs added improvements. As noted in my written testimony, in the
summer of 2023, when I reached out to work with the Lincoln National
Forest on a 638 Forestry contract, I was told that the project didn't
meet the TFPA requirements, and even if it did there was no funding to
support the proposed 638 contract.
To improve both the existing 638 Tribal Forestry program and the
proposed provisions in S.4370, we ask the Committee to remove the
``demonstration'' designation from the 638 Tribal Forestry program and
make it permanent. To ensure implementation of the program, we ask that
you add a funding mechanism to the 638 Forestry program that also
covers contract support costs. We ask that you amend the program to
limit an agency's ability to reject valid tribal requests to engage in
638 forestry contracts or compacts. And finally, we ask that you extend
Federal Tort Claims Act protection to the tribe and tribal employees
engaged in TFPA 638 Forestry contracts.
These additional improvements to the 638 Tribal Forestry program
will enable Tribes to consistently enter into contracts and compacts
with the Forest Service and BLM. Once this takes place, Tribes and
Tribal priorities will become part of the agency decisionmaking
process, making positive impacts on the exercise of tribal treaty
rights, protection of Native sacred places, and protection of tribal
investments on federal lands.
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