[House Hearing, 119 Congress]
[From the U.S. Government Publishing Office]
FEDERAL INDIAN TRUST ASSET
MANAGEMENT: PROGRESS MADE
BUT IMPROVEMENT NEEDED
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON INDIAN AND INSULAR AFFAIRS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
Tuesday, February 25, 2025
__________
Serial No. 119-8
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
59-389 PDF WASHINGTON : 2025
COMMITTEE ON NATURAL RESOURCES
BRUCE WESTERMAN, AR, Chairman
ROBERT J. WITTMAN, VA, Vice Chairman
JARED HUFFMAN, CA, Ranking Member
Robert J. Wittman, VA Raul M. Grijalva, AZ
Tom McClintock, CA Joe Neguse, CO
Paul Gosar, AZ Teresa Leger Fernandez, NM
Aumua Amata C. Radewagen, AS Melanie A. Stansbury, NM
Doug LaMalfa, CA Val T. Hoyle, OR
Daniel Webster, FL Seth Magaziner, RI
Russ Fulcher, ID Jared Golden, ME
Pete Stauber, MN Dave Min, CA
Tom Tiffany, WI Maxine Dexter, OR
Lauren Boebert, CO Pablo Jose Hernandez, PR
Cliff Bentz, OR Emily Randall, WA
Jen Kiggans, VA Yassamin Ansari, AZ
Wesley P. Hunt, TX Sarah Elfreth, MD
Mike Collins, GA Adam Gray, CA
Harriet M. Hageman, WY Luz Rivas, CA
Mark Amodei, NV Nydia M. Velazquez, NY
Tim Walberg, MI Debbie Dingell, MI
Mike Ezell, MS Darren Soto, FL
Celeste Maloy, UT Julia Brownley, CA
Addison McDowell, NC
Jeff Crank, CO
Nick Begich, AK
Jeff Hurd, CO
Mike Kennedy, UT
Vivian Moeglein, Staff Director
William David, Chief Counsel
Ana Unruh Cohen, Democratic Staff Director
http://naturalresources.house.gov
------
SUBCOMMITTEE ON INDIAN AND INSULAR AFFAIRS
JEFF HURD, CO, Chair
AUMUA AMATA C. RADEWAGEN, AS, Vice Chair
TERESA LEGER FERNANDEZ, NM, Ranking Member
Aumua Amata C. Radewagen, AS Nydia M. Velazquez, NY
Doug LaMalfa, CA Val T. Hoyle, OR
Tim Walberg, MI Pablo Jose Hernandez, PR
Addison McDowell, NC Emily Randall, WA
Mike Kennedy, UT Jared Huffman, CA, ex officio
Bruce Westerman, AR, ex officio
------
CONTENTS
----------
Page
Hearing Memo..................................................... v
Hearing held on Tuesday, February 25, 2025....................... 1
Statement of Members:
Hurd, Hon. Jeff, a Representative in Congress from the State
of Colorado................................................ 1
Leger Fernandez, Hon. Teresa, a Representative in Congress
from the State of New Mexico............................... 2
Huffman, Hon. Jared, a Representative in Congress from the
State of California........................................ 4
Statement of Witnesses:
Gobin, Glen, Tribal Council Member, Tulalip Tribes, Tulalip,
Washington................................................. 6
Prepared statement of.................................... 7
Questions submitted for the record....................... 9
Desautel, Cody, President, Intertribal Timber Council,
Portland, Oregon........................................... 10
Prepared statement of.................................... 12
Questions submitted for the record....................... 14
Capoeman, Hon. Guy, President, Quinault Indian Nation,
Taholah, Washington........................................ 15
Prepared statement of.................................... 16
Questions submitted for the record....................... 18
Schulz-Oliver, Amber, Executive Director, Affiliated Tribes
of Northwest Indians, Portland, Oregon..................... 21
Prepared statement of.................................... 23
Questions submitted for the record....................... 25
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To: House Committee on Natural Resources Republican Members
From: Natural Resources Committee Indian and Insular Affairs
Subcommittee staff: Ken Degenfelder
([email protected]), Jocelyn Broman
([email protected]), and Kirstin Liddell
([email protected]) x6-9725
Date: February 24, 2025
Subject: Oversight Hearing titled ``Federal Indian Trust Asset
Management: Progress Made But Improvement Needed''
________________________________________________________________________
The Subcommittee on Indian and Insular Affairs will hold an
oversight hearing titled ``Federal Indian Trust Asset Management:
Progress Made But Improvement Needed'' on Tuesday, February 25, 2025,
at 2 p.m. in 1324 Longworth House Office Building.
Member offices are requested to notify Haig Kadian
([email protected]) by 4:30 p.m. (EST) on Monday, February 24,
2025, if their member intends to participate in the hearing.
I. KEY MESSAGES
The federal government has a trust responsibility toward
American Indians and Alaska Natives, including the
stewardship of tribal lands and assets.
In 2016, Congress enacted the Indian Trust Asset Reform
Act (ITARA) to reaffirm the trust responsibility of the
federal government while promoting tribal management of
their own trust assets through the Indian Trust Management
Demonstration Program (ITARA Demonstration Program).
Since the enactment of ITARA, only two tribes have
successfully completed the necessary steps to establish an
Indian Trust Asset Management Plan or Project (ITAMP), and
those ITAMPs only covered forest trust assets, in
contravention of the intent of ITARA.
The ITARA Demonstration Program authorization expires in
2026. As Congress considers the merits of reauthorizing the
program, this hearing will examine the scope of the trust
assets allowed to be included in an ITAMP and the
bureaucratic red tape that has prohibited tribes from fully
participating in this program.
II. WITNESSES
Mr. Glen Gobin, Tribal Council Member, Tulalip Tribes,
Tulalip, WA
Ms. Amber Schulz-Oliver, Executive Director, Affiliated
Tribes of Northwest Indians, Portland, OR
Mr. Cody Desautel, President, Intertribal Timber Council,
Portland, OR
The Hon. Guy Capoeman, President, Quinault Indian Nation,
Taholah, WA [Minority witness]
III. BACKGROUND
This hearing will examine the impact of the Indian Trust Asset
Reform Act (ITARA) and the Indian Trust Asset Management Demonstration
Program (ITARA Demonstration Program), which is set to expire in 2026.
Only a few tribes have submitted plans for the ITARA Demonstration
Program since its creation 10 years ago, despite the intended purpose
of granting tribes more direct authority to manage their trust
assets.1
Federal Trust Responsibility
Since the founding of the United States, the federal government has
taken on a federal trust responsibility toward American Indians and
Alaska Natives. The term ``federal trust responsibility'' is the
``legal obligation under which the United States, through treaties,
acts of Congress, and court decisions, `has charged itself with moral
obligations of the highest responsibility and trust' toward Tribes.''
2 This trust responsibility includes the obligation of the
United States to steward lands and land assets for tribes and requires
the federal government to, at some level, manage tribal trust
lands.3
Federal policies pertaining to tribal lands have shifted
dramatically throughout U.S. history. In the 1800s, as settlement moved
westward, the United States negotiated treaties with tribes,
subsequently creating Indian reservations. In the late 1800s, the
United States pursued an assimilationist policy requiring allotment of
reservation lands to individual tribal members, thereby removing these
lands from traditional trust status and placing them into the hands of
individuals.4 The Indian Reorganization Act (IRA) was
enacted in 1934, which simultaneously ended the practice of allotment
while granting the Secretary of the Interior (Secretary) the ability to
take land into trust for the benefit of a Tribal nation.5
In the 1970s, the federal government transitioned to a policy of
self-determination for tribes. In his July 8, 1970 message to Congress,
President Nixon laid out the beginning of the self-determination
policy, stating, ``we must make it clear that Indians can become
independent of Federal control without being cut off from Federal
concern and Federal support.'' 6 In response, Congress
enacted the Indian Self-Determination and Education Assistance Act
(ISDEAA), which formed the statutory basis for tribes to contract and/
or compact selected programs, functions, services, and activities
(PFSAs).7 This law did not, however, remove the federal
trust responsibility of the federal government, but did provide a
statutory framework by which tribes could assume responsibility for
operating programs traditionally provided for Indians by the federal
government because of their status as Indians. Despite successes seen
through ISDEAA, tribal assets remain largely in the managing hands of
the federal government.
Trust Assets and Federal Management of Trust Assets
In 1994, the then-Associate Director of Financial Integrity Issues
from the then-titled General Accounting Office (now the Government
Accountability Office, or GAO), testified on the Department of the
Interior's (DOI) mismanagement of tribal trust assets. The testimony
highlighted that trust asset ownership records were not up to date,
there was inadequate management of natural resource assets, and
weakness in the systems, policies, and procedures related to trust fund
management.8 GAO also testified that DOI had failed to
``consistently and prudently invest trust funds and pay interest to
account holders.'' 9 The lack of accountability at DOI for
tribal trust assets resulted in long-standing issues and legal
liability related to tribal trust assets.
DOI attempted to address these issues through various
approaches.10 However, these initiatives were undeveloped or
duplicative and failed to address the root causes of these
problems.11 Recognizing that departmental initiatives were
inadequate, Congress passed the American Indian Trust Fund Management
Reform Act of 1994, which required the Secretary to discharge federal
trust responsibilities properly, allow tribes to submit a plan to
directly manage tribal funds held in trust by the United States, and
established the Office of the Special Trustee for American Indians
(OST).12
The OST was charged with overseeing and coordinating the reform
efforts related to the federal trust responsibility toward American
Indians.13 Having the OST report directly to the Secretary
elevated the importance of trust asset management within the
department.14 OST assumed full responsibility for tribal
trust resources in 1996.15 Shortly after, Eloise Cobell, a
member of the Blackfeet Nation, filed a class action lawsuit against
the United States on behalf of 300,000 individual Indians over DOI's
management of individual Indian money accounts, which are held for the
benefit of individual tribal members with trust assets.16
This lawsuit, known as Cobell v. Salazar, was ultimately settled by the
Obama Administration and brought about further trust asset
reform.17 Despite the settlement, trust asset management
concerns remained, leading Congress to evaluate if the federal
government was adequately suited to manage tribal trust assets.
Indian Trust Asset Reform Act (ITARA) and Creation of the Bureau of
Trust Funds Administration
Enacted in 2016, ITARA sought to reaffirm the federal trust
responsibility to Indian tribes and encourage tribal self-determination
regarding tribal trust assets.18 ITARA would achieve this in
two ways: 1) allow tribes the opportunity to manage their own trust
assets through a new demonstration program; and 2) reorganize where
Indian trust assets are managed within the DOI.19
The ITARA Demonstration Program authorizes the Secretary to carry
out ITAMPs with tribes that meet specific requirements. To participate
in the demonstration program, tribes must submit an application, and
after the Secretary approves the application, the tribe must submit an
ITAMP that meets the statutory and regulatory requirements, including
not violating federal statutes.20 When tribes have more
opportunity to manage tribal assets and pursue economic
diversification, they generally have increased tribal revenue and
created jobs for their communities.21
ITARA also reorganized the management of tribal trust assets,
requiring the transition of OST functions to other bureaus or offices
within the DOI.22 On October 1, 2020, the Bureau of Trust
Funds Administration (BTFA) was established by secretarial order to
take over the OST functions.23 The creation of the BTFA
aimed to consolidate the core functions carried out previously by the
OST into an organized, indefinite ``Trust Operations structure.''
24 The BTFA's primary responsibility is to oversee and
manage the financial trust assets of American Indians managed by the
DOI.25
ITARA required the Secretary to submit a report to Congress by June
2017 outlining a timeline and transition plan to terminate the
OST.26 However, to date, Interior has not provided Congress
with this report.27 The OST still technically exists,
although as of this hearing, all full time positions have been
vacant.28
Indian Trust Asset Management Demonstration Program: Challenges and
Room for Improvement
The original intent of ITARA was to allow tribes to enter into
ITAMPs on a wide range of trust assets while relieving the federal
government of any liability.29 However, to date, DOI has
limited its engagement with tribes to considering only the waiver of
regulations under its purview, specifically those related to surface
land and timber.30 This limitation on what federal
regulations can be waived through ITAMPs has hindered tribes' ability
to fully manage their trust assets and is counter to the intent of
ITARA because trust assets are not defined as only surface land and
timber within the statute. While the statute does not prescribe which
assets may be included in an ITAMP, tribal assets are as varied as the
tribes themselves and should not be arbitrarily limited. The Committee
does intend to seek legislative solutions to ensure that tribes can
more fully exercise greater determination to ensure the administration
does not limit what trust assets may be included as part of an ITAMP.
In the nearly a decade since ITARA's passage, only two tribes have
successfully obtained ITAMP approvals.31 Other applications
have stalled within DOI's bureaucratic process, and tribes have been
dissuaded from applying.32 One tribe described the ITAMP
draft template as ``lengthy, confusing, and [included] details that are
not required by the ITARA law.'' 33 Stakeholders have
indicated that regional career staff at the Bureau of Indian Affairs
(BIA) have pushed back on ITAMPs without any real explanation as to why
tribes couldn't manage their own trust assets.34 The slow
pace of ITAMP approvals raises concerns about the lack of
administrative action and commitment to these tribal demonstration
projects, as well as tribal self-determination.
Another concern surrounding the implementation of ITAMP is the lack
of information provided to tribal entities about the program and its
existence. Stakeholders have indicated that many tribes are unaware of
the program's existence and the opportunities it could offer a
tribe.35
Congress could consider adding a notice requirement to an ITARA
Demonstration Program reauthorization, requiring the Secretary to
notify tribes with trust assets of their ability to participate in the
demonstration program.
Despite these challenges, ITAMPs have demonstrated success where
implemented. For example, the Cow Creek Band of Umpqua Tribe of Indians
entered into an ITAMP that ``significantly enhanced [their] forest
management and economic opportunities'' by improving wildfire
mitigation and overall forest health and giving the tribe more
opportunities to sell forest products in new and emerging
markets.36 The Coquille Indian Tribe had an approved ITAMP
that allowed the tribe to remove bureaucratic red tape and manage its
own land without requiring the federal government's
permission.37 These examples showcase the positive impacts
ITAMPs provide tribes if implemented promptly and correctly.
With the ITAMP provisions of ITARA set to sunset in
2026,38 Congress should consider whether to reauthorize the
demonstration program and what improvements can be made to it. Given
ITARA's goal of expanding tribal management of trust assets and the
fact that only two projects have been approved, it is crucial to ensure
that more tribes have access to this opportunity. A broader and more
accessible ITAMP, as it was intended, would allow tribes to fully
exercise their rights over trust assets and realize the potential
benefits demonstrated by existing projects.
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OVERSIGHT HEARING ON FEDERAL INDIAN
TRUST ASSET MANAGEMENT: PROGRESS
MADE BUT IMPROVEMENT NEEDED
----------
Tuesday, February 25, 2025
U.S. House of Representatives
Subcommittee on Indian and Insular Affairs
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to notice, at 2:20 p.m., in
Room 1324, Longworth House Office Building, Hon. Jeff Hurd
[Chairman of the Subcommittee] presiding.
Present: Representatives Hurd, Walberg, Kennedy, Leger
Fernandez, Hoyle, Hernandez, Randall, and Huffman.
Mr. Hurd. The Subcommittee on Indian and Insular Affairs
will come to order.
Without objection, the Chairman is authorized to declare a
recess of the Subcommittee at any time.
The Subcommittee is meeting today to hear testimony for an
oversight hearing entitled, ``Federal Indian Trust Asset
Management: Progress Made But Improvement Needed.''
Under Committee Rule 4(f), any oral opening statements at
hearings are limited to the Chairman and the Ranking Minority
Member. I therefore ask unanimous consent that all other
Members' opening statements be made part of the hearing record
if they are submitted in accordance with Committee Rule 3(o).
Without objection, so ordered.
I will now recognize myself for an opening statement.
STATEMENT OF THE HON. JEFF HURD, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Mr. Hurd. Today, the Subcommittee meets for an oversight
hearing titled, ``Federal Indian Trust Asset Management:
Progress Made But Improvement Needed.'' Today's hearing will
continue the work of the Subcommittee to elevate tribal
autonomy while reiterating the trust responsibility of the
Federal Government towards American Indians and Alaska Natives.
The Federal trust responsibility is the legal obligation of
the United States towards Tribes. This trust responsibility
includes the stewardship of tribal lands and assets, but that
responsibility has not always been properly managed. In the
early 1990s the Department of the Interior's mismanagement of
tribal trust assets was exposed. Trust asset ownership was not
up to date, natural resource assets were in disarray, and the
weaknesses in the systems, policies, and procedures were
highlighted. The United States had not lived up to its trust
responsibility.
Recognizing that failure, Congress passed the American
Indian Trust Fund Management Reform Act of 1994 in hopes of
reforming this broken system. However, this was not an all-
encompassing fix, and shortly after, a major lawsuit was filed
against the United States. In Cobell v. Salazar the Department
of the Interior was accused of mismanaging individual Indian
money accounts held for the benefit of tribal members with
trust assets. The Cobell v. Salazar case was settled by the
Obama administration, but the issue at its core was whether the
Federal Government was the best manager of tribal assets.
With this line of thinking, Congress enacted the Indian
Trust Asset Reform Act, or ITARA, in 2016 which reaffirmed the
Federal trust responsibility while promoting tribal self-
determination with trust assets. ITARA created a 10-year
demonstration program that allowed Tribes to manage their own
trust assets. That demonstration program is what we will focus
on today. The original intent of the demonstration project was
to allow Tribes to take control over a wide range of trust
assets. Yet after 9 years only two Tribes have been able to
enter into this program. This is unacceptable.
We will hear from multiple tribal witnesses today on why
this program has not lived up to its full potential. I
understand that some core issues are limited by which the
Department of the Interior has placed the program, as well as
bureaucratic red tape, a lack of awareness of the program, and
a lengthy and confusing process. With the demonstration program
set to expire in 2026, now is the time to identify where the
barriers are and how we can overcome them. This Subcommittee
has seen time and time again how much better suited Tribes are
to manage their own programs and assets. This is one of those
cases.
I want to thank all of our tribal witnesses for traveling
here today to speak in person on this important issue, and I
look forward to a robust discussion.
The Chairman now recognizes the Ranking Minority Member for
any statement.
STATEMENT OF THE HON. TERESA LEGER FERNANDEZ, A REP-
RESENTATIVE IN CONGRESS FROM THE STATE OF NEW
MEXICO
Ms. Leger Fernandez. Thank you, Mr. Chairman, and good
afternoon to each of our witnesses, and thank you for traveling
all the way to Washington, D.C. to share with us your
experiences, your expectations, and your frustrations.
The Indian Trust Asset Reform Act that we are going to talk
about today really goes at the core of what we should be doing
in the Federal Government, which is giving back to the Tribes
what they always deserved and had before we, the Federal
Government, kind of stepped in and messed it up, right?
You knew how to manage your lands. You managed them for
centuries. And tribal management of forest land has been
recognized over and over as some of the best.
I happen to represent the Jicarilla Apache Nation for
several decades. You all are nodding your head because you know
they have a great forest management program. We actually
defended them in court when the State wanted to come in and say
you are not allowed to do that, and the judge said, wait a
minute, we should learn some lessons from what they are doing.
The Mescalero Apache Tribe in New Mexico are renowned for
forest work.
And so, what this program was supposed to do was to give
that authority back to you. But there have been many
frustrations. But the concept of making sure that you have that
authority, I think, is what we see reflected in the report that
says we should make it permanent but let's fix some of the
problems. And that is what you are going to share with us
today. Because it should not take 4 years to get a plan
approved and implemented, which is one of the things that we
have heard and we will hear today.
But imagine how long it will take if the people who are
necessary to approve that no longer sit on a desk. And sadly,
we will have to talk about that today because over 2,000
Department of the Interior staff have been fired, terminated,
or maybe they have just retired and there is no intent to
replace them.
At one college in my beautiful State, 20 percent of their
employees were laid off, said, ``Go home.'' Some of them who
had been teaching for years, they were taken out of their
classroom and now those students don't know if they don't have
a professor to teach the course that is required for them to
get their degree. How will they graduate?
So this is also an issue that we will need to address is
how do we actually provide the resources so that the department
that needs to give you the authority can indeed do so.
I am disappointed that no one from the Trump administration
or the BIA is testifying before us so that we can raise
concerns directly. This is a Republican Administration. This is
a Republican-led Committee, and I am very grateful to our
Subcommittee Chair for the work he does and the concern he
brings to this, but these are the kinds of concerns that we
cannot ignore.
But the principle that we are going to talk about today and
that you are carrying out I am completely committed to. And so
I am grateful that we are having this oversight hearing before
the Act expires so we can determine what do we need to do to
improve it, and then to actually fund it so that those 55
million acres of tribal land in the United States, and 19
million of which are forested in 33 different States can be
managed by the Tribes under the principle of self-government
and under the principle that the trust responsibility should be
transformed to say that we trust you because you know your
land, your history, your people, and your cultures better than
anybody in Washington, D.C.
But we need to make sure that the funding flows, together
with that trust. And so addressing that under-funding and that
staffing, I think, is a really important part of this puzzle
that we will work on together.
And with that, Mr. Chairman, I yield back.
Mr. Hurd. Thank you very much, Ranking Member Leger
Fernandez. The Chair will now recognize the Ranking Member of
the Full Committee, the gentleman from California, for an
opening statement.
Mr. Huffman.
STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Huffman. Thank you, Mr. Chairman, and I am glad that
you and the Ranking Member are having this hearing. It is
important to take a look at this law, ITARA, which strengthens
tribal self-governance by empowering Tribes to exercise greater
control and management of their land and resources.
And so this demonstration project that we will be hearing
about today, under title 2 of that law was intended to allow
Tribes to voluntarily submit trust asset management plans to
assume control over forest management and/or surface leasing
activities on their trust lands. And then, once approved, these
plans permit Tribes to implement management approaches that
align with their environmental, economic, and cultural
priorities.
And with that law having been enacted in 2016 and getting
set to run its course, it is a very good time, after nearly a
decade of implementation, to take a look at assessing the
demonstration project's impact. And our witnesses here today
will provide us invaluable insights into that, into the
successes and the challenges of the demonstration projects so
that we can evaluate its effectiveness and some future
direction.
Recent testimony before the Subcommittee emphasized the
importance of the demonstration project, and also the--2023
Indian Forest Management Assessment Team, which gave a report
that underscored ITARA's significance while highlighting the
ongoing challenges in tribal forestry and resource management.
One finding from the report that stands out and is
particularly relevant to today's discussion is that many Tribes
still don't know about ITARA. So the report recommends
extending the ITARA demonstration project indefinitely, a
recommendation that I look forward to hearing more about from
our witnesses.
And although the law initially set the demonstration
projects duration at 10 years, it includes a provision that
allows for an extension at the Secretary's discretion. I am
disappointed that the majority chose not to include the BIA in
this hearing because it would have been good to hear from them
about all of this. I believe it is critical that the agency be
present in this discussion, and by not inviting them we limit
our ability to address the challenges faced at the
administrative level and hinder the opportunities for an open
dialog between the Subcommittee, the BIA, and the witnesses and
stakeholders.
I would also be remiss not to mention the recent
termination of thousands of Federal workers across various
agencies, including the BIA. The BIA already struggles with
limited funding and personnel to effectively carry out its
responsibilities, and these workforce reductions raise serious
concerns about the long-term viability of programs like ITARA.
These terminations will have lasting consequences, further
limiting the agency's ability to support tribal nations and
implement critical programs. Reports indicate that up to 118
BIA employees were expected to be terminated, although the
exact number remains unclear.
If key positions remain unfilled and essential services are
unstaffed or under-staffed, the BIA will continue to under-
perform, ultimately hurting Indian Country. So as we move
forward I do hope this Subcommittee will remain committed to
advocating for the BIA and Tribes to have the staffing,
resources, and the funding necessary to support tribal nations
and their citizens.
Thanks again, Mr. Chairman, for this hearing, and I yield
back.
Mr. Hurd. Thank you very much, Ranking Member Huffman. It
is now my pleasure to introduce the witnesses for our panel.
The first is Mr. Glen Gobin, Tulalip Tribal Council of the
Tulalip Tribes in Tulalip, Washington. Welcome.
Next is Mr. Cody Desautel, President of the Intertribal
Timber Council in Portland, Oregon. Welcome, Mr. Desautel.
And now I would like to recognize Ms. Randall from
Washington for 1 minute to introduce the witness from her
district.
Ms. Randall.
Ms. Randall. Thank you so much, Mr. Chair, and thank you to
Mr. Gobin from Tulalip for joining us, as well as President
Capoeman. We so appreciate you taking the time and effort to
journey across the country. I know firsthand how hard it can
be, making this trip back and forth every weekend.
I have really enjoyed working alongside President Capoeman
as a member of the State legislature, and look forward to a
continued relationship.
President Guy Capoeman is the President of the Quinault
Business Committee, the elected legislative body of the
Quinault Indian Nation, a nation located on 208,000 acres in
the southwestern corner of the Olympic Peninsula, cradled
between the snowcapped Olympic Mountains and the northern
Pacific Ocean. It is a beautiful place with Roosevelt elk,
black bear, black-tailed deer, bald eagles, cougar, and many
other animals.
And Mr. Capoeman has served on the council for 15 years in
many positions and is also, fun fact, an incredible artist and
carver of a 34-foot ocean-going cedar canoe not too long ago in
his studio, and a 15-foot carved cedar statue, ``Our Fisherman,
Our Guardian,'' that the town of Gig Harbor is very lucky to
host at a historic village site of the Sk'wapad Band of the
Puyallup Tribe.
And I am grateful for his leadership and so glad to have
him here today.
Mr. Hurd. Thank you, Ms. Randall.
And finally, last but not least, Ms. Amber Schulz-Oliver,
Executive Director of the Affiliated Tribes of Northwest
Indians, also in Portland, Oregon. Welcome.
Let me remind the witnesses that under Committee Rules,
they must limit their oral statements to 5 minutes, but their
entire statement will appear in the hearing record.
To begin your testimony, please press the ``talk'' button
on the microphone.
We do use timing lights. When you begin, the light will
turn green. When you have 1 minute left, the light will turn
yellow. And at the end of the 5 minutes, the light will turn
red, and I will ask you to please complete your statement.
I will also allow all witnesses on the panel to testify
before Member questioning.
The Chairman now recognizes Chair Gobin for 5 minutes.
Chair Gobin.
STATEMENT OF GLEN GOBIN, TRIBAL COUNCIL MEMBER,
TULALIP TRIBES, TULALIP, WASHINGTON
Mr. Gobin. Good afternoon, Chairman Hurd, Ranking Member
Leger Fernandez, and members of the Subcommittee. My name is
Glen Gobin. My traditional name is Te Chut. And I serve on the
Tulalip Tribal Council. On behalf of the Tulalip Tribe, we
thank you for the opportunity to testify today on Indian trust
asset management. My testimony will focus on Tulalip's
experience in trying to utilize the Indian Trust Asset Reform
Act, ITARA.
ITARA was signed into law in 2016. The Act streamlines the
process of Indian trust resource management, strengthening
tribal sovereignty and furthering tribal self-determination.
Title 2 of the Act allows the Secretary of the Interior to
enter into an Indian Trust Asset Management Plan, and requires
the Tribe to identify the Indian Trust asset that will be
subject to the plan. Once approved, the plan allows the Tribe
to direct how they want their trust assets managed.
In March 2019 Tulalip Tribe sent a tribal resolution and
letter to the Department requesting to participate in this
demonstration project. Tulalip identified its reservation
tidelands. Tulalip Tribes has jurisdiction to manage and
regulate the reservation tidelands and its use under the Treaty
of Point Elliott by executive order and tribal constitution.
The treaty and executive order established and set aside and
reserved for the benefit of the Tulalip people the Tulalip
Indian Reservation which included the tidelands to the extreme
low tide as the permanent homeland for a seafaring and fishing
Tribe.
The shoreline is where many ancestral settlements and
burial sites are located, and where tribal fishing, gathering,
and cultural activities, as well as recreation continue today.
The protection and management of the reservation tidelands by
the Tribe is both necessary and indispensable to protect and
preserve and use of the homeland for our treaty fishing rights.
Fishing shellfish resources are a vital component to the
economy, culture, subsistence, and identity to the Tulalip
people. The right to harvest these resources is secured for the
exclusive use of the Tribe under the Treaty of Point Elliott,
as confirmed in U.S. v. Washington. The tidelands provide
essential habitat and food for these tribal resources, and
protection of these tidelands is essential to preserve,
benefiting future generations of the tribal people.
Today the shoreline is studded with marinas, parking lots,
public buildings, houses, cabins, docks, bulkheads, and beach
access stairways, causing increased beach erosion, loss of
beach sediment, and loss of beach vegetation, causing negative
impacts to fish and shellfish resources. We have had several
meetings with the Department discussing the tidelands. At their
request, we provided information regarding the location of the
tidelands, ongoing asset and resource management on the
tidelands, and surface lease information of the tidelands.
Ultimately, we were told in unambiguous terms that ITARA
demonstration project was limited to forestry resource and
surface leases. The law, however, does not limit what trust
assets are subject to the plan, and there is no language in the
bill that would support limited or narrow reading of the scope
of trust resources.
Tulalip renewed its efforts to enter into an ITAMP in 2023,
this time with a new administration. The Department told us to
send a draft plan, and that they would review it and determine
whether the tidelands would qualify as an Indian trust asset
pursuant to the law.
Separately, we have heard from others that the Department
is continuing to make the same determination as prior
administrations, and limiting the plan to forestry resources.
While the Tribe will continue to manage its tidelands in
cooperation with the Department, it would prefer to include the
tidelands in a trust management plan to better achieve the
Tribe's management objectives. The Department's narrow and
unfounded interpretation of ITARA, however, is frustrating this
effort.
To avoid further confusion and misinterpretation of the
law, we recommend Congress amend ITARA to remove these
roadblocks and make demonstration projects permanent.
We thank you for the opportunity to provide testimony on
this critical matter for Indian Country.
[The prepared statement of Mr. Gobin follows:]
Prepared Statement of Glen Gobin, Tulalip Tribes Tribal Council
Good afternoon, Chairman Hurd, Ranking Member Leger Fernandez, and
members of the Subcommittee. My name is Glen Gobin, Tulalip Tribes
Tribal Council. On behalf of the Tulalip Tribes, we thank you for this
opportunity to testify today on Indian trust asset management. My
testimony will focus on the Tulalip's experience in trying to utilize
the Indian Trust Asset Reform Act (ITARA or the ``Act'').
The Tulalip Tribes is the successor in interest to the Snohomish,
Snoqualmie, and Skykomish people and allied bands signatory to the
Treaty of Point Elliott of 1855. Within the Treaty, our ancestors
reserved the right to fish at all usual and accustomed grounds and
stations and to hunt and gather upon all open and unclaimed lands. The
United States holds a trust responsibility to protect the Tribes'
rights and interests as reserved in the treaty. The Tulalip membership
continues to exercise these rights today. We are a fishing people.
Fishing has sustained us culturally and economically as it has since
time immemorial.
The Tulalip community is on a 22,000-acre Reservation bordering the
Interstate 5 corridor, 35 miles north of Seattle. The Tulalip Tribes
membership consists of approximately 5,500 members with approximately
2,800 living on the reservation. Today, forty percent of the Tulalip
Indian reservation is in non-Indian fee status due to the history of
the General Allotment Act and over 10,000 non-Indian residents live on
the reservation. The geographic location of the Tulalip Indian
reservation, the non-Indian resident count, combined with the Tribal
economic development created by the Tribes draws thousands of daily
visitors.
ITARA was signed into law in 2016. The Act streamlines the process
of Indian trust resource management, strengthening Tribal sovereignty
and furthering Tribal self-determination. Title II of Act allows the
Secretary of the Interior to enter into Indian Trust Asset Management
Plans (ITAMPs) with Indian tribes. Once approved, ITAMPs allow tribes
to direct how they want their Indian trust assets to be managed.
Section 203(a) of ITARA requires interested tribes to submit
application materials, including a tribal resolution. If the Department
accepts a tribe's application and allows it to participate in the
demonstration project, the tribe can then submit a proposed ITAMP for
the Secretary's consideration. Section 204(a)(2) of ITARA requires
proposed ITAMPs to identify the Indian trust asset(s) that will be
subject to the plan, in addition to other information.
In March of 2019, the Tulalip Tribes sent a tribal resolution and
letter to the Department requesting to participate in the demonstration
project, per the requirements of Section 203(a) of the Act. Tulalip
identified the Tulalip tidelands located on the Puget sound shoreline
as the Indian trust asset to be subject to the plan. The Tulalip
tidelands are all tidelands within the reservation lying above the line
of extreme low tide, and are reserved for the use and benefit of the
Tribes.
The Tulalip Tribes has jurisdiction to manage and regulate
Reservation tidelands use by reason of the Treaty of Point Elliott, 12
Stat. 927, the Executive Order of December 23, 1873, and the Tribal
Constitution. The treaty and executive order established and set aside
the Tulalip Indian Reservation as a homeland for a seafaring and
fishing tribe. The protection and management of the Reservation
tidelands by the Tribes is both necessary and indispensable to protect
and preserve the use of the homeland for such purposes as well as the
Tribes' treaty fishing rights, political integrity, economic security,
and health and welfare of its members. The Tribe utilizes portions of
638 self-governance funding to manage and protect the tidelands.
We had several meetings with the Department discussing the
tidelands where upon request we provided information to the Department
regarding the location of the tidelands, ongoing asset and resource
management on the tidelands, and surface lease information of the
Tidelands.
The Puget Sound shoreline is one of the most important physical
features of the Tulalip Reservation to the Tulalip Tribes its members,
and non-tribal residents. The shoreline is where many ancestral
settlements and burial sites are located and where tribal fishing,
gathering, cultural activities, and recreation continue to this day.
The Tulalip people have depended on the shoreline to such an extent
that the tidelands were not allotted to individual Tribal members by
the Federal government and the tidelands, together with all of Tulalip
Bay, are reserved for the use and benefit of the Tribes. Unfortunately,
much development has occurred along the Reservation shoreline over the
years. Today, the shoreline is studded with marinas, parking lots,
public buildings, houses, cabins, docks, bulkheads, and beach access
stairways, causing negative impact on shorelines on the Reservation and
throughout Puget Sound.
Fish and shellfish resources are of vital importance to the
economy, culture, subsistence, and identity of the Tulalip people. The
right to harvest these resources is secured for the exclusive use of
the Tribes under the Treaty of Point Elliott as confirmed in U.S. v.
Washington. The tidelands provide essential habitat and food for these
Tribal resources and protection of these tidelands is essential to
preserve the use of the Reservation as a homeland for the Tulalip
people and preserve its use for treaty fishing activities.
The impacts of bulkheads are of concern. Their negative impacts to
fish and shellfish resources and their habitat are well-documented and
include increased beach erosion, loss of beach sediments, and lowering
of the beach due to the reflection of wave energy off of hard bulkheads
back onto the beach, Beach starvation,'' which is the loss of beach
sand and sediment that occurs when bulkheads block the supply of
sediment that erodes from the bluff. The fine sediments tend to be
lost, which means less habitat for the creatures that are prey for
juvenile fish, and loss of plants and shade, which are important to
fish habitat, as bank vegetation is removed when bulkheads are built.
Water quality has decreased dramatically as pollutants make their
way into Puget Sound from roads, homes, parking lots, septic systems
and other forms of development. Fish populations, including salmon,
herring, bottom fish, and many others, have declined. Shellfish beds
have been closed for public health reasons. Tribal fish and shellfish
resources and habitat have been severely degraded by the numerous
bulkheads and other physical alterations to the shoreline. Docks,
pilings and buoys have interfered with Tribal net fisheries.
Information from the Tulalip Natural Resources Department shows that
there are approximately 73 docks and piers and 124 mooring buoys along
the Reservation shoreline while there are less than 15 private docks
and buoys along the rest of Snohomish County's shoreline, excluding
Everett. Many of these private structures and uses are on Tribally
owned tidelands without permission or compensation to the Tribes. The
Tribes and its members are increasingly prevented from gaining access
to the tidelands reserved for their use.
By Tribal code, the Tulalip Tribes regulates bulkheads, docks,
stairways, and other shoreline structures, however, the Tribe has not
been satisfied that it adequately addresses the impacts of shoreline
development stated above. There have been ongoing demands by several
departments to revise or expand the Tribes' requirements. It has also
been pointed out that there are several feasible alternatives to
bulkheads including vegetation management, drainage and ground water
control, replenishing scoured beaches with sand, and anchoring drift
logs to the beach. Additionally, the Tribe has expressed concern over
the need to protect Tribal property interests by requiring leases for
private structures constructed on Tribal tidelands. While in the past,
Tribal tidelands were leased to private parties for a variety of uses,
this practice has fallen out of use. Now there are numerous private
structures located on Tribal tidelands that are not currently, or may
have never been, leased from the Tribes.
After several meetings with representatives from the Department of
the Interior, we were told in unambiguous terms that the ITARA
demonstration project was limited to forestry resources and surface
leases. The law does not limit what ``trust assets'' are subject to the
plan and there is no language in the bill that would support a limited
or narrow reading of the scope of trust resources.
Tulalip renewed its efforts to enter into an ITAMP in 2023, this
time with a new Administration. The Department told us to send a draft
plan and that they would review it and determine whether the tidelands
would qualify as an Indian trust asset pursuant to the law. Separately,
we heard that the Department was making the same determination as the
prior administration and limiting the plan to forestry resources.
Under a ``plain reading of the law'' doctrine, a statute must be
based solely on the literal meaning of the words used, without needing
to consider additional context or interpretations. Here, the law is
clear and does not allow for multiple interpretations of what an Indian
trust asset is. Instead, the Department is turning the plain meaning
rule on its head and unilaterally limiting the scope of Title II and
frustrating tribes' efforts to include non-forestry resources in
ITAMPs.
While the Tribe will continue to manage its tidelands in
cooperation with the Department, it would prefer to include the
tidelands in a Trust Asset Management Plan to better achieve the
Tribe's management objectives. The Department's narrow and unfounded
interpretation of ITARA, however, is frustrating this effort.
To avoid further confusion and misinterpretation of the law, we
recommend that Congress amend ITARA to remove these roadblocks and make
the demonstration project permanent.
We thank you for the opportunity to provide testimony on this
critical matter for Indian Country.
______
Questions Submitted for the Record to Glen Gobin, Council Member,
Tulalip Tribes, Tulalip, WA
Questions Submitted by Representative Westerman
Question 1. As the Indian Trust Asset Reform Act (ITARA) was
enacted in 2016, the included demonstration project is set to expire in
2026. Should the demonstration program be reauthorized, if yes, please
explain why.
Answer. Yes. ITARA streamlines the process of Indian trust resource
management, strengthening Tribal sovereignty and furthering Tribal
self-determination by giving Tribes greater control over their trust
assets, specifically, the Tulalip Tidelands. The protection and
management of the Reservation tidelands by the Tribes is both necessary
and indispensable to protect and preserve the use of the homeland for
our treaty fishing rights. Fish and shellfish resources are of vital
importance to the economy, culture, subsistence, and identity of the
Tulalip people. The right to harvest these resources is secured for the
exclusive use of the Tribes under the Treaty of Point Elliott as
confirmed in U.S. v. Washington. The tidelands provide essential
habitat and food for these Tribal resources and protection of these
tidelands is essential to preserve, benefiting future generations of
the Tulalip people. The ITARA demonstration would streamline and
support the Tulalip Tribes management of its tidelands.
Question 2. As discussed during the hearing, the Bureau of Indian
Affairs/Department of the Interior have provided a narrow scope for
what trust assets may be included in the demonstration program. How
would you address this concern?
2a) Would you be willing to work with my committee staff on
language that would clarify this if reauthorization were pursued?
Answer. Yes. The Tulalip Tribes stands ready to assist and can
provide suggested language to reinforce the intent of the ITARA
demonstration program.
Question 3. Stakeholders have argued that the demonstration program
was not properly advertised throughout the country. What should the DOI
be required to do for advertising the program if it is reauthorized?
3a) Please detail how Tulalip initially heard about the
demonstration program.
Answer. The Department of the Interior should list the consultation
on website at www.bia.gov which has a drop-down option that lists all
upcoming consultations. This was created after this law was created.
Also, a Dear Tribal Leader letter should be sent with multiple
consultation dates.
Question 4. Please expand on the challenges the Tulalip Tribe
encountered when applying to participate in the demonstration program?
4a) How can Congress better address these issues?
Answer. In 2017, the Tulalip Tribes had several meetings with the
Department discussing the tidelands and at their request we provided
information regarding the location of the tidelands, ongoing asset and
resource management on the tidelands, and surface lease information of
the Tidelands. Ultimately, we were told in unambiguous terms that the
ITARA demonstration project was limited to forestry resources and
surface leases. The law however does not limit what ``trust assets''
are subject to the plan and there is no language in the bill that would
support a limited or narrow reading of the scope of trust resources.
Tulalip renewed its efforts to enter into an ITAMP in 2023, this time
with a new Administration but again, was not successful.
Question 5. Your written statement highlighted the Treaty of Point
Elliot affirmed under U.S. v. Washington, which provided that the
Tulalip people have the right to harvest fish and shellfish resources
found on their reservation tidelands. What challenges have you
personally seen on your tidelands over the years?
Answer. There has certainly been a loss of access to the shoreline,
so we are prevented from fishing on higher tides. Also, the tidelands
are being blocked by bulkheads, marinas, parking lots, public
buildings, houses, cabins, docks, bulkheads, and beach access
stairways, causing loss of ground fish and crab. And we have lost our
ability to fish in our traditional fishing areas because of the
installation of unpermitted mooring buoys on our reservation tidelands.
______
Mr. Hurd. Thank you very much, Chair Gobin, for that
testimony. The Chairman now recognizes President Desautel for 5
minutes.
Mr. Desautel.
STATEMENT OF CODY DESAUTEL, PRESIDENT, INTERTRIBAL
TIMBER COUNCIL, PORTLAND, OREGON
Mr. Desautel. Thank you, Chairman Hurd and members of the
Committee. My name is Cody Desautel, and I serve as the
President of the Intertribal Timber Council. I will focus my
comments on timber assets and the forest planning provisions of
the Indian Trust Asset Reform Act.
Ten years ago, the ITC supported the Indian Trust Asset
Reform Act, particularly the demonstration project of title 2.
The intent was to allow Tribes greater control in the
management of their natural resources. Public law 114-178
authorized the ITARA Demonstration Project for 10 years from
its enactment in June 2016. Given the extensive time it took to
approve the first project, the ITC strongly supports an
extension of the ITARA authority prior to its June 2026
expiration date.
The statute states that the demonstration projects may be
extended at the discretion of the Secretary. We have
continually requested the Secretary to use his or her authority
to do this, but unfortunately have been unsuccessful. Of
course, permanent extension is also possible by an act of
Congress, which we hope this Committee will consider.
The ITC member Tribes Coquille and Cow Creek have
successfully implemented ITARA and have approved Indian Trust
Asset Management Plans, or ITAMPs, for their forest resources.
Both Tribes have demonstrated ITARA's effectiveness in
promoting tribal self-determination, environmental stewardship,
and economic sustainability.
ITARA has enabled the Tribes to manage its forest resources
under its own laws and regulations, significantly reducing
bureaucratic delays while streamlining review and approval
processes. As a result, the Tribe has been able to dramatically
reduce approval timelines for forest management projects,
advance forestry goals and objectives with greater autonomy,
swiftly access growing markets for forest products while
optimizing revenue generation, and increasing revenue streams
which are reinvested into vital services for tribal members.
Over the course of the demonstration projects the Tribes have
successfully conducted numerous forest management and fuels
projects.
Moving on to IFMAT, the Committee is aware that the
National Indian Forest Resource Management Act mandates that--
an independent scientific review of Indian trust forests once
every decade. The latest report from the Indian Forest
Management Assessment Team, or IFMAT, was presented to Congress
in 2023, and contains hundreds of recommendations for improving
Indian forest management. The ITC reiterates its request for an
oversight hearing before this Committee to ensure that its
recommendations are being considered and implemented.
The 2023 IFMAT report contains specific observations about
ITARA, noting that approximately 80 percent of tribal trust
forest acres are managed wholly or partially under Public Law
93-638 contracts, cooperative agreements, or compacts. As
Tribes continue to move towards self-governance with examples
like ITARA, IFMAT found the context of the inherent Federal
function and the relationship in fulfilling the Secretary's
trust responsibility changes. This leaves a residual trust
responsibility that is not well understood and can lead to
under-utilization of self-governance authorities.
IFMAT found that there are specific benefits for Tribes and
the BIA in carrying out forest management activities under
ITARA and self-governance more generally. Tribes that are
carrying out forest management activities under ITARA are
performing functions previously considered inherent Federal
functions, yet funds are not made available to the Tribes for
these additional responsibilities.
The ITC supports the ITARA recommendations within the IFMAT
report, including permanent extension of the ITARA authority;
direct funds to Tribes held by Interior when they are
performing inherent Federal functions under ITARA; improving
funding, policy, and procedure guidance provided by the BIA
regional offices concerning ITARA implementation needs;
establishing a training program that provides BIA officials and
tribal leaders with better strategies for engagement,
consistent with congressional policy--this is something ITC is
prepared to support the BIA with; identifying funding sources
for the Tribes to participate in the ITARA demonstration
projects; and review of the context of the Secretary's
responsibility in fulfilling the performance of inherent
Federal functions, including related funding issues.
In conclusion, in addition to the recommendations above I
want to reinforce the importance of maintaining an adequate
funding and staffing for BIA to assist Tribes with the
development, review, approval, and funding of Indian Trust
Asset Management Plans.
When the Coquille ITAMP was approved in 2020, the BIA had
almost 8,000 employees. Our understanding is that the current
workforce is approximately half that, and the number is
dropping. Without adequate, qualified staff in BIA we are
likely to see continued delays in implementation and use of
this authority.
Thank you again for holding today's Oversight Committee
hearing, and I stand ready to answer any questions.
[The prepared statement of Mr. Desautel follows:]
Prepared Statement of Cody Desautel, President,
Intertribal Timber Council
Thank you for holding today's hearing to examine how to improve the
management of Indian trust assets. As President of the Intertribal
Timber Council, I will focus my comments on timber assets and the
forest planning provisions of the Indian Trust Asset Reform Act
(ITARA).
Background
Ten years ago, the ITC supported the Indian Trust Asset Reform
Act--particularly the Demonstration Project of Title II. The intent was
to allow tribes greater control in the management of their natural
resources to benefit their own communities. Unfortunately,
implementation was slower than anticipated and tribal participation
lower than expected.
The ITARA was passed by Congress and signed into law (Public Law
114-178) in June 2016. One month later, the Obama Administration
initiated a series of nine tribal consultations on Title III of the
Act, dealing with the functions of the Office of the Special Trustee
and appraisals of Indian trust property. A proposed rule was published
in the Federal Register by September 2016.
Shortly after passage of the Act, several tribes contacted the
Department requesting participation in the demonstration project. A
year later, the Department responded to these requests by informing
tribes that the demonstration project had not yet been established and
that a consultation process with tribes would need to be completed
before tribes could re-submit their requests for participation.
The ITC formed a Title II working group in June 2017 to help
facilitate further discussions among tribes and with the Department.
The Department did not sign the first Indian Trust Asset Management
Plan (ITAMP) pursuant to ITARA until October 2020--more than four years
after enactment.
P.L. 114-178 authorized the ITARA pilot project for 10 years from
enactment (June 2016). Therefore, the pilot authority is set to expire
in June 2026. Given the extensive time it took for even the first
project to be approved, the ITC strongly supports extension of the
ITARA authority. The statute states that the ITARA authority ``may be
extended at the discretion of the Secretary.'' We have continually
requested the Secretary of the Interior to use his/her authority to do
this. Of course, permanent extension is also possible by an Act of
Congress.
Implementation Examples
Several ITC member tribes have successfully implemented ITARA and
have approved ITAMP's for their forest resources. The first approved
ITAMP was for the Coquille Indian Tribe in western Oregon. Coquille's
ITAMP allow for tribal members, staff and leadership at various levels
to be a part of the environmental review decision process and for those
individuals to provide valuable knowledge, information and insights
into the management of their communities' forest resources.
The Coquille Tribe's internal timeline for project review can be
adjusted to facilitate their needs, and allows the Tribe to more
quickly adapt to change by managing under their own laws. The Coquille
Tribe reports that ITARA has allowed for efficiencies in budgeting and
financial management by eliminating an intermediate fiduciary.
Since receiving approval, the Cow Creek Band of Umpqua Tribe of
Indians (``Cow Creek'') has actively engaged in forest management
activities, demonstrating ITARA's effectiveness in promoting tribal
self-determination, environmental stewardship, and economic
sustainability.
ITARA has enabled Cow Creek to manage its forest lands under its
own tribal laws and regulations, significantly reducing bureaucratic
delays while streamlining review and approval processes. As a result,
the Tribe has been able to:
Dramatically reduce approval timelines for forest
management projects.
Advance forestry goals and objectives with greater
autonomy.
Swiftly access growing markets for forest products,
optimizing revenue generation.
Increase revenue streams, which are reinvested into vital
services for tribal members.
Over the course of the demonstration project, the Tribe has
successfully conducted numerous timber sale activities, including:
regeneration harvest, commercial thinning, pre-commercial thinning,
fuels reduction, and prescribed burning.
Cow Creek's commercial timber harvests demonstrate that a tribally
led approach to land management is both efficient and economically
beneficial not only for the Tribe but also for the local community. The
Tribe's ability to act swiftly and strategically in forest product
markets has resulted in enhanced financial returns and greater
sustainability in forest resource utilization.
If you have travelled through Portland International Airport in
Oregon, you'll note that it's a celebration of sustainably sourced wood
products. Much of that wood was sourced from Pacific Northwest Indian
Tribes. The wood provided by the Coquille Tribe came from their first
timber sale pursuant to the ITAMP.
Independent Review by the IFMAT
The Committee is aware that the National Indian Forest Resources
Management Act (``NIFRMA'') mandates an independent scientific review
of Indian trust forests once every decade. The latest report from the
Indian Forest Management Assessment Team (``IFMAT'') was presented to
Congress in 2023 and contains hundreds of recommendations for the
improvement of the management of Indian forests. The ITC reiterates its
request of this committee to formally review the IFAMT report in an
oversight hearing to ensure that its recommendations are being heeded.
The 2023 IFMAT report contains specific observations about ITARA,
noting that approximately 80% of tribal trust forested acres (includes
all categories) are managed wholly or partially under P.L. 93-638
contracts, cooperative agreements, or self-governance compacts rather
than direct service. This is 38% of all tribal forestry and fire
programs.
The IFMAT observed that ITARA makes the current BIA manual and
handbook approach to development and compliance with federal standards
less relevant. Also, inconsistent requirements and guidance exist
between BIA direct operations and self-governance tribes relating to
trust oversight, trust standards and trust responsibility. The most
recent IFMAT report also noted that tribes have a unique vision for
forest management more focused on stewardship and non-timber forest
products. To accommodate this, we recommend some changes to the
reporting metrics used by the BIA, which has historically been focused
almost exclusively on timber production.
As tribes continue to move toward self-governance and perform
programs under ITARA, IFMAT found, the context of the inherent federal
function and the relationship of the performance of this function in
fulfilling the Secretary's trust responsibility changes. This leaves a
residual trust responsibility that is not well understood and can lead
to underutilization of self-governance authorities.
IFMAT found that there are special benefits for tribes and BIA in
carrying out forest management activities under ITARA and self
governance generally. BIA rules and procedures have lagged the advance
of self-governance creating limited progress and understanding of ITARA
demonstration projects. ITARA promises self-governance benefits for
interested tribes. However, many tribes have little or no knowledge
about ITARA. Tribes carrying out forest management activities under
ITARA are performing functions previously considered inherent federal
functions performed by the BIA, yet funds are not made available to the
tribes for these additional responsibilities.
IFMAT Recommendations
The ITC supports the recommendations of the IFMAT to improve its
performance for tribes, including:
Permanent extension of ITARA authority by the Secretary of
the Interior or Congress;
Redirect funds to tribes retained by the DOI/BIA for
performing functions previously considered inherent federal
functions but now carried out by tribes under ITARA. This
reform would shift funds from the BIA to the tribes who are
actually performing the functions and provide additional
funds for tribes to achieve tribally defined state-of-the-
art forest management;
Funding, policy, and procedural guidance concerning ITARA
implementation needs to be provided to BIA Regional
offices;
Establish a training program that provides BIA officials
and tribal leaders with better strategies of engaging with
self-governance tribes through a spirit of government to
government and consistent with Congressional policy rather
than domination. This is something the ITC is prepared to
support BIA with, as we have done for implementation of
other congressional authorities, such as the Tribal Forest
Protection Act;
Sources of funding should be better identified, and
information provided to tribes about how to secure needed
funding to participate in the ITARA Demonstration Project;
Review, under ITARA, the context of the Secretary's trust
responsibility and its fulfillment and changes in
performance of inherent federal functions including related
funding issues.
Conclusion
Thank you again for holding today's oversight hearing and your
interest in improving the management of Indian trust assets, especially
our forest resources.
______
Questions Submitted for the Record to Cody Desautel, President,
Intertribal Timber Council, Portland, OR
Mr. Desautel did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.
Questions Submitted by Representative Westerman
Question 1. The Indian Trust Asset Reform Act (ITARA) Demonstration
Program was initially authorized for 10 years. How has ITARA
streamlined decision-making and reduced bureaucratic delays for the ITC
tribes?
1a) Do you think this program should be reauthorized again?
1b) Does the ITC have any proposed legislative changes or
improvements to ITARA that would further enhance tribal self-
governance?
Question 2. Do you think the Bureau of Indian Affairs/Department of
the Interior has done an adequate job in advertising and informing
tribes about the ITARA demonstration program?
2a) How did the ITC tribes initially hear about the demonstration
program?
2b) What should the DOI be required to do for advertising the
program if it is reauthorized?
Question 3. One of ITARA's goals was to assist tribes in getting
day-to-day business done by providing an option for tribes to hire
their own appraisers while eliminating the requirement that the DOI
must review and approve them. Congress has recognized that delays in
obtaining appraisals negatively impact economic development. Can you
describe how the ability to hire appraisers has helped ITC tribes?
Question 4. ITARA essentially provided HEARTH Act treatment for
trust assets as a way to provide tribes flexibility while creating new
jobs. Please expand on the benefits of this flexibility.
Question 5. Your written statement mentioned that ITARA allowed for
greater efficiencies by allowing tribes to make specific management
decisions without federal bureaucratic review and analysis. Can this
efficiency be extrapolated to a larger level, beyond tribal lands?
5a) How could tribes help bring their models of efficiency to
federal land, forest and fire management?
Question 6. The Secretary of the Interior has the authority to
extend the demonstration project. In your written statement, you stated
that the ITC requested the Secretary of the Interior, then-Secretary
Haaland, to do so. Were you provided any specific reason why she chose
not to do so?
Question 7. In your written testimony, you touched on the Coquille
Tribe's experience with ITARA in the realm of forestry and how the
added flexibility of managing their own forest assets has benefited the
tribe. Please elaborate further on this added flexibility and how
important this is to forest resources?
Question 8. In your written testimony, you cited the Cow Creek
Tribe's use of the ITARA demonstration project to streamline the review
and approval process, reduce unnecessary timelines, and advance
forestry goals. Elaborate further as to how ITARA opened the door for
Cow Creek to conduct time sales, commercial thinning, and prescribed
burning.
______
Mr. Hurd. Thank you very much, President Desautel, for that
testimony. The Chairman now recognizes President Capoeman for 5
minutes.
President Capoeman.
STATEMENT OF THE HON. GUY CAPOEMAN, PRESIDENT,
QUINAULT INDIAN NATION, TAHOLAH, WASHINGTON
Mr. Capoeman. Good afternoon, Chairman Hurd, Ranking Member
Leger Fernandez, Chairman Westerman, Ranking Member Huffman,
and members of the Subcommittee. Thank you for giving me the
opportunity to testify before you today on the Quinault
Nation's experiences with the Indian Trust Asset Reform Act,
ITARA.
My name is Guy Capoeman, and I am the duly-elected
President of the Quinault Indian Nation Business Committee. I
have held this position for the last 4 years, and currently
serving in my second term.
As you know, ITARA was enacted into law in June 2016. This
legislation was intended to enhance tribal self-determination
by granting Tribes greater authority over the management of our
trust assets. Under ITARA Tribes are authorized to conduct
forestry programs under tribal law and regulations to assume
functions previously considered as inherent Federal functions
of the Bureau of Indian Affairs.
A key component of ITARA was the establishment of a
voluntary demonstration project that allows participating
Tribes to develop and implement their own Indian Trust Asset
Management Plans. These plans enable Tribes to set objectives
and priorities for assets located within their reservations or
under their jurisdiction to manage these activities such as
surface leasing, forest land management without requiring
further approval from the Secretary of the Interior.
However, while ITARA was intended to support Tribes, its
implementation has been fraught with challenges. Lack of
clarity and significant delays in execution have undermined its
goals. For example, the BIA struggled to define parameters of
ITARA. It was not until October 1, 2018, over 2 years after
ITARA's passage, that the BIA provided initial guidance to
Tribes. Even with this guidance, Tribes continued to face
uncertainty. And Quinault, for example, spent almost 3 years
seeking answers to ITARA implementation.
These issues are not unique to Quinault, but are instead
endemic to ITARA. In 2023, as required by the National Indian
Forest Resources Management Act, the U.S. Forest Service
Division of Forestry and Intertribal Timber Council, in support
of the Secretary of the Interior, completed its 10-year Indian
Forest Management Assessment Team, IFMAT, report. The IFMAT
report primarily serves to conduct a comprehensive evaluation
of Indian forest lands and associated management practices
while also assessing the status, management, health, and
utilization of these forests.
The IFMAT report addressed how--ITARA promises self-
governance benefits for interested Tribes. However, many Tribes
have little or no knowledge about ITARA. Tribes carrying out
forest management activities under ITARA are performing
functions previously considered inherent Federal functions
performed by the BIA, yet funds are not made available to these
Tribes for these additional responsibilities.
Quinault and other Tribes believe that ITARA has the
potential to benefit Indian nations across the country.
However, the very challenges ITARA was designed to address--
excessive regulation, lack of clarity, and inadequate Federal
responsiveness which continues to impede its success and
undermine its goal of promoting self-determination. Again, more
red tape that Tribes have to face to get something done.
To address these issues and support the implementation of
ITARA, Quinault respectfully requests that the Subcommittee
take the following actions.
As recommended in the IFMAT report, the ITARA Demonstration
Project, set to expire in June 26, should be extended
indefinitely to allow Tribes to continue working toward the
self-governance and forest management outcomes envisioned by
the Act.
Continue to support ITARA and similar legislation that
advances tribal self-governance while minimizing over-reaching
regulatory requirements.
As more Tribes assume forestry program management
responsibilities under ITARA, the BIA's role should be re-
evaluated.
ITARA is intended to empower Tribes. Require the DOI, the
BIA, and other relevant agencies to implement ITARA as
originally intended.
Streamlining processes and providing clear guidance when
needed.
And I will say this, that the great Joe DeLaCruz said there
is no more right, more sacred than the inherent right to govern
yourself, and that means your lands and resources as well.
I want to thank the Committee for this opportunity to
testify here today.
[Speaking Native language.]
[The prepared statement of Mr. Capoeman follows:]
Prepared Statement of Guy Capoeman, President, Quinault Indian Nation
Good afternoon, Chairman Hurd, Ranking Member Leger Fernandez,
Chairman Westerman, Ranking Member Huffman, and Members of the
Subcommittee. Thank you for giving me the opportunity to testify before
you today on the Quinault Nation's (``Quinault'') experiences with the
Indian Trust Asset Reform Act (``ITARA''). My name is Guy Capoeman, and
I am the duly elected President of the Quinault Indian Nation's
Business Committee. I have held this position for the past four years
and am currently serving in my second term. I am honored to be here and
look forward to discussing ITARA.
As you know, ITARA was enacted into law on June 22, 2016. This
legislation was intended to enhance tribal self-determination by
granting Indian tribes' greater authority over the management of their
trust assets. Under ITARA, ``tribes are authorized to conduct forestry
programs under tribal law and regulations and to assume functions
previously considered as inherent federal functions of the Bureau of
Indian Affairs (``BIA'').''
A key component of ITARA was the establishment of a voluntary
demonstration project that allows participating tribes to develop and
implement their own Indian Trust Asset Management Plans (``ITAMP'').
These plans enable tribes to set objectives and priorities for assets
located within their reservations or under their jurisdiction, and to
manage activities such as surface leasing and forest land management
without requiring further approval from the Secretary of the Interior.
Additionally, the Act directs the Department of the Interior (``DOI'')
to streamline processes related to the administration of Indian trust
assets, including valuations and appraisals.
However, while ITARA was intended to support tribes, its
implementation has been fraught with challenges. Lack of clarity and
significant delays in execution have undermined its goals. For example,
the BIA struggled to define parameters of ITARA. It was not until
October 1, 2018--over two years after ITARA's passage--that the BIA
provided initial guidance to tribes. Even with this guidance Tribes
continued to face uncertainty, and Quinault, for example, spent almost
three years seeking answers to ITARA implementation.
On September 24, 2021, Quinault formally expressed its interest in
participating in the ITARA Demonstration Project by submitting a letter
to then Assistant Secretary of Indian Affairs Bryan Newland. This
letter outlined Quinault's proposed project and included the required
resolution and other documentation. Quinault was subsequently advised
to modify certain language in its submission to align with the
requirements of the demonstration project. It was not until November
17, 2023, through a letter from Assistant Secretary Newland, that
Quinault received approval to proceed with developing an ITAMP as part
of the demonstration project.
Since receiving approval, Quinault has worked to develop its ITAMP,
contracting with entities to assist with the plan's preparation after
securing the necessary development funding. Despite these efforts, the
process has been protracted. More than eight and a half years after
ITARA's passage, and despite persistent efforts to navigate an
initially unclear program and overcome federal delays, Quinault remains
in the process of finalizing its ITAMP in a format that complies with
purported federal requirements.
These issues are not unique to Quinault but are instead endemic to
ITARA. In 2023, as required by the National Indian Forest Resources
Management Act (``NIFRMA'') the US Forest Service Division of Forestry
and Intertribal Timber Council, in support of the Secretary of the
Interior, completed its ten-year Indian Forest Management Assessment
Team (``IFMAT'') report. The IFMAT report primarily serves to conduct a
comprehensive evaluation of Indian forest lands and associated
management practices while also assessing the status, management,
health, and utilization of these forests. The 2023 IFMAT report
addressed ITARA in detail and stated the following important
determinations:
ITARA promises self-governance benefits for interested
tribes. However, many tribes have little or no knowledge
about ITARA. Tribes carrying out forest management
activities under ITARA are performing functions previously
considered inherent federal functions performed by the BIA,
yet funds are not made available to the tribes for these
additional responsibilities.
Funding, policy, and procedural guidance concerning ITARA
implementation needs to be provided to BIA Regional
offices. [ . . . ] Sources of funding should be identified,
and information provided to tribes about how to secure
needed funding to participate in the ITARA Demonstration
Project.
[The federal government should] redirect funds to tribes
retained by the DOI/BIA for performing functions previously
considered inherent federal functions but now carried out
by tribes under ITARA. This reform would shift funds from
the BIA to the tribes who are actually performing the
functions and provide additional funds for tribes to
achieve tribally defined state-of-the-art forest
management.
[The] IFMAT [ . . . ] recommends the Secretary of the
Interior extend the ITARA Demonstration Project
indefinitely.
Quinault and other tribes believe that ITARA has the potential to
benefit Indian nations across the country. However, the very challenges
ITARA was designed to address--excessive regulation, lack of clarity,
and inadequate federal responsiveness--continue to impede its success
and undermine its goal of promoting Tribal self-determination. To
address these issues and support the implementation of ITARA, Quinault
respectfully requests that the Subcommittee take the following actions:
As recommended in the IFMAT report, the ITARA
Demonstration Project, set to expire in June 2026, should
be extended indefinitely to allow tribes to continue
working toward the self-governance and forest management
outcomes envisioned by the Act.
Continue to support ITARA and similar legislation that
advances Tribal self-governance while minimizing
overreaching regulatory requirements and oversight by the
federal government. This is particularly critical in light
of the administration's emphasis on reducing unnecessary
regulation and the potential downsizing of BIA staff
traditionally responsible for overseeing federal functions
that can be assumed by Tribes under ITARA.
As more Tribes assume forestry program management
responsibilities under ITARA, the BIA's role should be
reevaluated. ITARA empowers Tribes to manage forestry
operations and approvals more efficiently, cost-
effectively, and in alignment with their unique needs,
eliminating the need for unnecessary federal involvement
and oversight.
Require the DOI, the BIA, and other relevant agencies to
implement ITARA as originally intended by streamlining
processes, providing clear guidance where needed, and
ensuring timely review and approval of ITAMPs as well as
support for Demonstration Projects.
ITARA has the potential to empower tribes by reducing federal
oversight and promoting tribal autonomy. However, the very federal
intervention ITARA sought to minimize has delayed its implementation.
Quinault believes in ITARA's promise and its ability to give tribes the
authority to manage, protect, and utilize their natural resources for
the benefit of their communities and the country as a whole. We
respectfully urge the Subcommittee to support the actions outlined here
and to champion tribal autonomy, resource stewardship, and economic
independence.
Thank you for the opportunity to testify today.
______
Questions Submitted for the Record to the Hon. Guy Capoeman, President,
Quinault Indian Nation, Taholah, WA
Questions Submitted by Representative Westerman
Question 1. Do you think the Bureau of Indian Affairs/Department of
the Interior has done an adequate job in advertising and informing
tribes about the Indian Trust Asset Reform Act (ITARA) Demonstration
Program?
Answer. No. Prior to the Intertribal Timber Council (``ITC'') and
individual Tribes pushing the Department of Interior (``DOI'') and
Bureau of Indian Affairs (``BIA'') to implement the ITARA Title II
Demonstration Project, the BIA showed little interest in implementing
ITARA. At the 2017 ITC Timber Symposium, information was presented to
Tribes about ITARA and a working group was established to facilitate
dissemination of ITARA information to Tribes. On October 16, 2017, the
ITC sent a letter (attached) to the DOI Secretary expressing concern
that no action was being taken by the DOI to establish the
Demonstration Project. The letter specifically requested that DOI
initiate the ITARA consultation process with Tribes and establish the
Demonstration Project immediately thereafter.
A year later, on October 01, 2018, the consultation process was
completed, and the Demonstration Project was formally established by
the Assistance Secretary of Indian Affairs (``ASIA'') Tara Sweeney
(attached). Similar to what occurred in the early days of
implementation of the Indian Self-Determination Act (P.L. 93-638),
which was furthered by Self-Governance Compacts, many within BIA failed
to embrace, and some even resisted, implementation of ITARA, which
would end federal domination and turn full control of forest management
over to Tribes.
1a) How did the Quinault Indian Nation initially hear about the
demonstration program?
Answer. The Quinault Indian Nation (``QIN'') initially heard of
ITARA through membership and interaction with ITC.
1b) What should the DOI be required to do for advertising the
program if it is reauthorized?
Answer. Aggressively announce the opportunities under ITARA to all
tribes with trust assets. Provide guidance and support to any tribe
interested in a demonstration project under ITARA. Educate BIA staff
that are resistant to new opportunities for tribes, like ITARA, that
these are opportunities they should support and are required to support
as employees of the federal government and because of the government's
trust responsibility to tribes.
Question 2. Please expand on the challenges the Quinault Indian
Nation encountered when applying to participate in the demonstration
program?
Answer. As noted above, there was delay in the BIA determining how
to move the ITARA demonstration project forward. QIN had questions that
BIA could not answer or were not familiar with. Additionally, QIN staff
and leadership wrestled with the advantages and disadvantages of
entering the project. There was concern of how it might affect the
funding to operate the project, as funding over the years to support
QIN forestry management appeared static. Necessary information on the
impacts ITARA would have was not provided to the tribe.
The following can provide some insight as to the difficulties of
managing the Quinault Reservation landscape and thus an understanding
of how QIN crafted the project.
The Quinault Indian Reservation was devastated by the Dawes Act
through which approximately 190,000 acres of forested reservation was
divided and broken into 2,340 allotments of 80 acres. QIN was left with
virtually no land. Time, inheritance, and probates created multiple
owners in single allotments with undivided interests. Sales or
transfers of allotments or undivided interests in allotments out of
trust and into fee status has created a matrix of land ownership on the
reservation of mixed trust, tribal, and fee ownership of allotments.
QIN has engaged in efforts since the mid-1970s to purchase or otherwise
gain title to reservation lands whether they be in fee or trust status.
To this end, QIN owns 100% in approximately 76,000 acres and has
thousands of undivided interests, including undivided interest still in
fee status.
Throughout the ITARA and demonstration project process, QIN asked
several questions of the BIA as to what properties could be involved in
the project. Questions were raised regarding various categories of
allotments, including those where QIN holds a controlling interest,
full interest split between trust and fee, majority trust interest with
remaining interests held in fee, and situations where remaining trust
owners seek to participate in the project. Additional inquiries
addressed scenarios involving the division and management of interests
in these allotments. When these and similar questions were presented to
BIA and their solicitors, it became evident that their understanding
was lacking, as they mistakenly believed fee undivided interest owners
held greater control over management than they actually did,
highlighting a broader disconnect among BIA high-level staff and their
legal advisors.
Those familiar with land ownership issues on the Quinault
Reservation recognize that its circumstances are particularly complex
and challenging, particularly due to its predominantly forested
landscape. The delay in receiving reliable answers from BIA contributed
to further setbacks.
Due to limited guidance on what would be acceptable in a
demonstration project, QIN initially focused on including only 100%
owned property in the project. The request letter detailing the project
specifics required careful wording to gain approval, with minimal
assistance provided and some back-and-forth necessary to refine the
language to a standard that was acceptable to the agency.
Progress was also delayed due to insufficient federal funding to
support the hiring of QIN staff to guide the project through the
process. Key positions remained vacant as a result of inadequate
funding for the Forestry program on the Reservation, and despite QIN
successfully returning over 40,000 acres from fee to trust status, no
additional federal funding has been allocated for managing those lands,
further straining existing resources.
2a) How can Congress better address these issues?
Answer. QIN does not have suggestions responsive to this question.
Question 3. In your written testimony, you acknowledged that it
took over two years before the Bureau of Indian Affairs provided the
approval needed for Quinault to proceed with developing the Indian
Trust Asset Management Plan or Project (ITAMP). What caused the
significant delay in approval?
Answer. As noted above, a lack of understanding of the land issues
on the reservation and accurate answers to the questions posed by QIN.
Additionally, there seemed no template as to how to deal with the large
project QIN was pursuing. There had been a couple of much smaller
reservations also entering the demonstration project, but not with the
complications QIN presented. The BIA appeared to struggle with
providing answers, navigating the process, and delivering the necessary
follow-through to support the project as Congress had anticipated.
3a) Where do you see any opportunity to reduce bureaucratic red
tape to expedite that process?
Answer. Currently, approval of a tribal demonstration project
appears to lie with ASIA. Delegating approval to BIA staff more
familiar with specific reservation trust assets and needs would improve
the process. Currently there is delegation to Agency superintendents to
approve many types of actions such as land sales, timber sales, etc.
Developing guidelines for approval so that BIA and tribal staff are
familiar with processes would be beneficial for more efficient
development of and approval for the demonstration project. Otherwise,
all are walking down an unknown pathway.
Possibly forming a specific task force to help guide and support
tribes through the process of applying for and developing their
demonstration project. Currently it seems there is an absence of help
from BIA in how to navigate this process. It is understood there would
be reluctance on the part of BIA to encourage tribes to manage their
own assets as this was BIA's responsibility and control for the last
several decades and it appears difficult for some in BIA to release.
But that is the purpose of ITARA, to empower Tribes with greater
autonomy and the ability to enhance self-governance in areas where they
are best positioned to take the lead.
Question 4. In your written testimony, you stated that Quinault
formally expressed its interest in participating in the ITARA
demonstration program on September 24, 2021. Yet, Quinault is still not
actively participating in the ITARA Demonstration Program. Could you
provide further details as to what has delayed the finalization of
Quinault's ITAMP?
Answer. Navigating the uncertain process of advancing the project
required QIN to hire a consultant experienced in guiding other Tribes
through their demonstration projects. Securing funding for the
consultant proved challenging, as BIA withheld funding until the
project received their approval. BIA demonstrated reluctance in
supporting QIN's efforts, with one instance where an individual firmly
opposed providing funding due to their lack of support for ITARA. Due
to this reluctance, QIN allocated initial funding to begin the process.
Months after approval, BIA provided funding to develop and submit the
project, which is now in the draft development phase. That said, legal
and interpretive challenges remain to be addressed.
4a) How has the Bureau of Indian Affairs/Department of Interior
stalled that project specifically?
Answer. Mostly by not having a clear path forward nor providing
guidance on getting through their internal issues. It has been a bit of
a trial-and-error process at this point with the need to interact with
the BIA Central Office rather than the local BIA authorities who have a
better understanding of the reservation issues, but not of the
demonstration project process. As mentioned in prior questions, there
is an issue of some BIA staff not wanting to support ITARA and ITAMP
projects, and often seemingly to work actively against these projects.
Question 5. In your testimony, you offered the suggestion of
reducing the Bureau of Indian Affairs' role in forestry management.
Please elaborate further as to how the Bureau of Indian Affairs' role
should be reduced.
Answer. With over 80% of Tribal trust forest lands now being
partially or fully managed under P.L. 93-638 program contracts or
compacts (IFMAT IV Report) and with three Tribes now assuming complete
authority under approved ITARA/ITAMPs, the role of the BIA needs to
shift from exercising control and approval authority over forest
management activities to facilitating advancement of Tribal self-
determination and self-governance. Much of the current BIA focus is on
issuance of updated manuals and handbooks pertinent to direct BIA
operations of forestry programs. An internal BIA working group is
initiating the process for revision of the 25 CFR 163 forestry
regulations. Self-governance needs to be the overarching framework of
this work on updating BIA's role and authorities. The BIA's role of
exercising control and approval authority over forest management
operations needs to be reduced and redirected to greater or full
carrying out of forest management activities under ITARA. Given the
transition from BIA direct operations to Tribal self-governance and
complete Tribal authority through ITARA, the statute for Indian
Forestry (NIFRMA) needs to be reviewed for relevance to current
conditions (IFMAT IV report).
As tribes take on more responsibility in management of their
resources, the BIA role should transition to more of a support and
advisement role where needed and to ensure federal regulations are
followed. This as oppose to controlling and dictating management
processes to tribes wanting more control over their assets. This could
include advisement or help in setting up timber sales, helping in
forest road construction, guidance in resource inventory, managing
rangelands, advising on leasing, etc. with specialized ``strike teams''
for technical assistance.
It is also necessary to provide funding to tribes from funds
currently utilized by the BIA and broader federal government to support
the actions the Tribes are now taking responsibility for.
With the current movement to reduce federal employees, it becomes
more important for tribes to control management of their own trust
assets. ITARA allows activities to be authorized by tribes rather than
BIA officials, which can delay actions at times, particularly with
government shutdowns.
______
Mr. Hurd. Thank you, President Capoeman, for that
testimony. The Chairman now recognizes Ms. Schulz-Oliver for 5
minutes.
Ms. Schulz-Oliver.
STATEMENT OF AMBER SCHULZ-OLIVER, EXECUTIVE DIREC-
TOR, AFFILIATED TRIBES OF NORTHWEST INDIANS, PORT-
LAND, OREGON
Ms. Schulz-Oliver. [Speaking native language.] Good
afternoon. My name is Amber Schulz-Oliver. I am Yakima and
Wasco, and I serve as the Executive Director of the Affiliated
Tribes of Northwest Indians, or ATNI. The ATNI Executive Board
has asked me to be here today to provide this testimony on the
Indian Trust Asset Reform Act.
I want to thank Chairman Hurd, Ranking Member Leger
Fernandez, and members of the Subcommittee for allowing me to
appear today.
ATNI was founded in 1953, and represents 57 tribal
governments from Washington, Oregon, Idaho, Southeast Alaska,
Northern California, and Montana. In 2011 ATNI's Trust Reform
Committee began developing the underlying bill text that
Congress would 5 years later enact into law as ITARA. This
effort involved ATNI leadership, our member Tribes, and
technical staff. We were proud to see a bill that originated
from our organization be signed into law as one of the only
Indian policy bills of the 114th Congress.
ITARA contains three titles. Title 1 includes findings and
a reaffirmation that the responsibility of the United States to
Indian Tribes includes a duty to promote self-determination
regarding governmental authority and economic development.
Title 2 establishes a 10-year demonstration project that
authorizes Indian Tribes, on a voluntary basis, to direct the
management of their trust resources through negotiated
agreements with the Secretary of the Interior. This title is
based on Indian Country's recognition that in nearly every
instance Indian Tribes have demonstrated that they are better
managers of their natural resources and affairs than the
Federal Government.
Finally, title 3 of ITARA authorizes the creation of an
Under Secretary for Indian Affairs, and directs the Secretary
to prepare a report to the authorizing committees on a
transition of functions from the Office of the Special Trustee.
Although no administration has established the under secretary
position since ITARA was enacted, ATNI continues to support the
establishment of that position.
ATNI's initial enthusiasm of ITARA's enactment into law in
2016 was tempered when the Department began tribal consultation
on its implementation. When the Department consulted on title
2, it presented a template document that contained broad
waivers of liability and other requirements not required or
even contemplated by the text of the ITARA law.
Another major concern is the Department's continued
assertion that only forest resources and surface leases can be
included in trust asset management agreements. As drafted,
ITARA applies broadly to trust resources. ATNI intentionally
did not define the term ``trust resources'' out of concern that
the Administration might reject traditional energy resources
from its scope, like coal or oil and gas. There is no basis,
legal or otherwise, for the Department's continued view that
the law is limited to forestry and surface leases.
ATNI recommends that the Committee consider clarifying
amendments to ITARA that will eliminate the agency-imposed
obstacles to tribal participation. At a minimum, ATNI
recommends three changes.
The first is to eliminate the Secretary's discretion in
section 203(a) of the law to dissuade or reject Tribes from
submitting trust asset management agreements. The language
should be revised to eliminate the initial application
requirement. Tribes should be able to submit proposed
agreements for the Secretary's consideration without that
initial step.
Second, the Committee should address the Department's
unfounded interpretation that only forest resources and surface
leases are includable in trust asset agreements. The
Department's misguided interpretation of the law has prevented
Indian Country from utilizing ITARA to its full potential. ATNI
will work with the Committee on language to ensure that Indian
Tribes can include the full breadth of tribal trust resources
and trust asset agreements as we originally intended.
Finally, any amendments should make the demonstration
project in title 2 permanent. In 2024 ATNI adopted Resolution
2425, which urged the Secretary to make the demonstration
project permanent, and the National Congress of American
Indians adopted this resolution in its 2024 annual convention.
Despite these calls for the Secretary to administratively
extend the program, no action has been taken to date.
ATNI is grateful for this Subcommittee holding today's
hearing. We look forward to working with the Committee on
issues related to ITARA. This concludes my testimony, and I
will be happy to entertain any questions.
[The prepared statement of Ms. Schulz-Oliver follows:]
Prepared Statement of Amber Schulz-Oliver, Executive Director,
Affiliated Tribes of Northwest Indians
The Affiliated Tribes of Northwest Indians (``ATNI'') is pleased to
provide this testimony on federal Indian trust asset management,
specifically the Indian Trust Asset Reform Act (``ITARA''). As
explained below, in 2011, ATNI began developing the underlying bill
text that Congress would five years later enact into law as ITARA. I am
pleased to provide ATNI's perspective on ITARA, its implementation by
the Department of the Interior, and provide recommendations for the
Committee to consider going forward.
Background on ATNI and the Development of ITARA
Founded in 1953, ATNI represents 57 tribal governments from
Washington, Oregon, Idaho, southeast Alaska, northern California, and
Montana. For more than two decades, ATNI and its member tribes in the
Pacific Northwest have been active proponents of forward-looking trust
reform. ATNI's support and interest in these issues has been and is
grounded in our commitment to maintaining the integrity of the United
States' trust responsibility, the foundation of which is based upon the
historical cession of millions of acres of ancestral lands by tribes to
the United States. It is also based on our recognition that in nearly
every instance, Indian tribes have demonstrated that they are better
managers of their natural resources and affairs than the federal
government.
Much of the text of ITARA had its origins in S. 1439 and its House
companion bill, H.R. 4322, which were introduced in the 109th Congress.
Those bills were introduced and co-sponsored by the respective
committee chairmen and ranking members of the House Natural Resources
Committee and the Senate Committee on Indian Affairs. Following
introduction, staff from those committees travelled across the United
States to consult with Indian tribes on the legislation. The committees
then generated a revised version of S. 1439 to reflect the input they
received. Using the committees' revised draft of S. 1439 as a template,
beginning in 2011, ATNI focused on updating the two titles of that bill
that remained relevant following the settlement of the Cobell
litigation. Those two titles were the ``Indian Trust Asset
Demonstration Project'' and ``Restructuring the Office of the Special
Trustee.''
ATNI's Trust Reform Committee, which includes tribal leaders and
technical staff, drafted the new bill text over a period of months.
Once ATNI adopted the text through ATNI Resolution #12-62, we sought
sponsors for introduction. Rep. Mike Simpson (R-ID) and former Rep.
Denny Heck (D-WA) introduced the House bill, H.R. 812. Senators Mike
Crapo (R-ID) and Patty Murray (D-WA) sponsored the Senate bill.
President Obama signed H.R. 812 into law on June 22, 2016.
Overview of ITARA and Trust Asset Demonstration Project
ITARA contains three titles. Title I includes findings and a
reaffirmation that ``the responsibility of the United States to Indian
tribes includes a duty to promote tribal self-determination regarding
governmental authority and economic development.''
Title II establishes a 10-year demonstration project that
authorizes Indian tribes, on a voluntary basis, to direct the
management of their non-monetary trust resources through negotiated
agreements--called Indian Trust Asset Management Plans (``ITAMPs'')--
with the Secretary of the Interior (``Secretary'').
To participate, tribes submit a letter of interest to the Secretary
and, upon approval by the Secretary, then submit a proposed ITAMP. An
ITAMP must include, among other things, a description of the trust
assets that would be subject to the plan, the tribe's management
objectives and priorities for assets subject to the plan, and a
proposed allocation of funding for the proposed management activities.
Unlike the Indian Self-Determination and Education Assistance Act,
which authorizes tribes to contract or compact federal functions under
federal standards, the demonstration project in Title II of ITARA is
unique in that it allows participating tribes the freedom to determine
how their resources will be managed under tribal standards.
For example, an Indian tribe with timber resources that seeks to
participate in the demonstration project could submit a plan that would
direct that some of its forest land be managed in a manner to maximize
value on timber sales. The plan might also direct that other forested
acreage not be harvested at all to encourage tourism or promote certain
wildlife habitat.
Title II of ITARA also authorizes the Secretary to approve ITAMPs
that include provisions authorizing Indian tribes to carry out surface
leasing or forest management activities without secretarial approval
under certain conditions. This concept is modeled on and is
substantively identical to the HEARTH Act of 2012.
Empowering tribes to create value with their own resources
epitomizes the federal policy of self-determination. In an era where
federal appropriations for management of tribal natural resources have
been a fraction of the actual need, ATNI intended the ITARA
demonstration project in Title II to be a practical tool that tribes
could utilize to maximize its resources. ATNI also envisioned that the
demonstration project would eventually become permanent.
Finally, Title III of ITARA authorizes the creation of an
Undersecretary for Indian Affairs and directs the Secretary to prepare
a report to the authorizing committees on a transition of functions of
the Office of the Special Trustee. Although no administration has
established the Undersecretary position since ITARA was enacted, ATNI
and other tribal organizations continue to support the establishment of
that position.
Obstacles to Realizing ITARA'S Potential
The initial enthusiasm of ITARA's enactment into law was
disappointedly tempered when the Department began tribal consultation
on its implementation. The Department first began consultations on
Title III of the law and presented information in such a manner to
foreclose any meaningful discussion of restructuring the Office of the
Special Trustee. When the Department consulted on Title II, it
presented a template document that contained broad waivers of liability
and other requirements not required or even contemplated by the text of
the ITARA law. \1\
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\1\ See https://www.bia.gov/sites/default/files/dup/assets/as-ia/
raca/pdf/ITARA%20Draft %20Guidance.pdf
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The most significant concern, however, is the Department's
continued assertion that only forest resources and surfaces leases can
be included in ITAMPs, despite ITARA applying broadly to ``trust
resources.'' When drafting the underlying legislation, ATNI
intentionally did not define the term ``trust resources'' out of
concern that the administration might jettison traditional energy trust
resources from its scope. There is no basis, legal or otherwise, for
the Department's continued view that the law is limited to forestry and
surface leases. This interpretation has prevented Indian country from
utilizing ITARA to its full potential.
To date, ATNI is aware of only two ITAMPs that the Secretary has
approved, both of which involved forest resources. The Cow Creek Band
of Umpqua Tribe of Indians had the first approved ITAMP and the
Coquille Indian Tribe the second. Both tribes are in the state of
Oregon.
Recommendations
With the benefit of hindsight and the experiences of other Indian
tribes that have attempted to utilize or expressed interest in
utilizing ITARA, ATNI recommends that the Committee consider clarifying
amendments to eliminate the agency-imposed obstacles to tribal
participation. At a minimum, ATNI recommends the following:
1. Eliminate the Secretary's discretion to reject tribes from
submitting ITAMPs: Section 203(a) of ITARA sets forth a
process for tribes to submit a written application and,
following approval by the Secretary to participate in the
demonstration project, submit an ITAMP. This language was a
holdover from the text of S. 1439 in the 109th Congress
and, unfortunately, appears to have been used by the
Department as a pre-screening mechanism to dissuade or
preclude tribes from submitting ITAMPs. Section 203(a)
should be revised to eliminate the initial approval
requirement and simply allow tribes to submit ITAMPs for
the Secretary's consideration.
2. Clarify the Scope of Resources Includable in ITAMPs: The
Department's narrow and baseless interpretation that only
forest resources and surface leases are includable in
ITAMPs must be addressed. ATNI will work with the Committee
on language to ensure that Indian tribes can include the
full breadth of tribal trust resources in ITAMPs as we
originally intended.
3. Make Title II Permanent: ITARA provides for the demonstration
project in Title II to have a term of 10 years, which can
be extended at the discretion of the Secretary. In 2024,
ATNI adopted a Resolution #24-25, which urged the Secretary
to make the demonstration project permanent, and the
National Congress of American Indians adopted this
resolution at its 2024 annual conference. \2\ Despite this
resolution and calls from other organizations for the
Secretary to extend the program, no action has been taken
to date. Any amendments to ITARA should clarify that the
Title II authority is permanent.
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\2\ See https://ncai.assetbank-server.com/assetbank-ncai/action/
viewAsset?id=5608&index= 5&total=59&view=viewSearchItem
ATNI is grateful for the Subcommittee holding today's hearing and
---------------------------------------------------------------------------
looks forward to working with the Committee on issues related to ITARA.
______
Questions Submitted for the Record to Amber Schulz-Oliver, Executive
Director, Affiliated Tribes of Northwest Indians, Portland, OR
Questions Submitted by Representative Westerman
Question 1. The Indian Trust Asset Reform Act (ITARA) Demonstration
Program was initially authorized for 10 years. How has ITARA
streamlined decision-making and reduced bureaucratic delays for ATNI
tribes?
Answer. ATNI understands that the Cow Creek Band of Umpqua Indians,
which had the first approved Indian Trust Asset Management Plan
(ITAMP), can carry out prescribed burns under tribally approved burn
plans. This is a significant advantage over the Bureau of Indian
Affairs' (BIA's) current practice, which requires approval for
individual burn plans by a BIA official.
1a) Do you think this program should be reauthorized again?
Answer. Yes, for the reasons set forth in my written statement.
1b) Does ATNI have any proposed legislative changes or improvements
to ITARA that would further enhance tribal self-governance?
Answer. Yes. As noted in my written statement, ATNI has three
specific recommendations:
1. Eliminate the Secretary's discretion to reject tribes
from submitting ITAMPs;
2. Clarify the scope of resources includable in ITAMPs;
and
3. Make Title II of ITARA permanent.
In addition, ATNI is considering language that would provide for
tribally proposed ITAMPs to be deemed approved if the Secretary fails
to approve or disapprove them within the prescribed 120 day review
window. This approach is consistent with the ``deemed approved''
language in the Indian Self-Determination and Education Assistance Act
(ISDEAA).
Question 2. One of ITARA's goals was to assist tribes in getting
day-to-day business done by providing an option for tribes to hire
their own appraisers while eliminating the requirement that the DOI
must review and approve them. Congress has recognized that delays in
obtaining appraisals negatively impact economic development. Can you
describe how the ability to hire appraisers has helped ATNI tribes?
Answer. Section 305(a) of ITARA required the Secretary, within 18
months of enactment and in consultation with Indian tribes, to ensure
that appraisals and valuations of Indian trust property are
administered by a single bureau, agency or other administrative entity
within the Department. Sections 305(b) and (c) establish a process
whereby the Secretary establishes minimum qualifications for persons to
prepare appraisals and valuations of Indian trust property. When an
Indian tribe or Indian beneficiary submits an appraisal or valuation to
the Secretary that satisfies those minimum qualifications--and the
submission acknowledges the tribe or beneficiary's intent to have the
appraisal or valuation considered under this new subsection--the
appraisal or valuation will not require any further Secretarial review
or approval and will be considered final for purposes of effectuating
the applicable transaction.
The Department, despite being fully apprised of ATNI's intent in
drafting that section, did not implement Section 305(a) as intended
and, in fact, made matters worse. Section 305(a) was intended to
eliminate the situation of the BIA being required to request an
appraisal from the Office of Appraisal Services, which was the entity
within the Office of the Special Trustee that prepared or contracted
the appraisals. If the BIA failed to make the request, no appraisal
would be pipelined to be assigned to an appraiser. This happened often
and resulted in significant delays for tribes.
Instead of unifying the administration of appraisals, the Secretary
reorganized and centralized the appraisal function to the Appraisal
Services Directorate in the Department. Under this current arrangement,
the BIA now must request appraisals to that Directorate and compete
within the Department with appraisal requests from larger land
management agencies like the National Park Service, Bureau of Land
Management, etc.
Question 3. ATNI's membership includes 57 Indian tribes. Can you
briefly describe the demographics of ATNI's membership and some of the
resource management issues that tribes have identified?
Answer. ATNI's membership is a diverse mix of tribes, ranging from
tribes with smaller land bases on the coast and waterways in Puget
Sound in western Washington to tribes with larger land bases in the
Plateau area east of the Cascades. ATNI member tribes have reported
that they would like more flexibility to carry out management
activities on adjacent federal lands, in addition to their tribal
lands. They would also like to see the Department adopt a more flexible
position on the scope of regulations that can be waived in ITAMPs.
3a) How have ATNI's membership stated how current asset management
can be improved by an Indian Trust Asset Management Plan or Project
(ITAMP) or other reforms that Congress could consider?
Answer. ATNI member tribes have indicated that they would like more
authority to perform and contract federal functions on federal lands,
including with the U.S. Forest Service.
Question 4. Your testimony highlights the frustration amongst
tribes with the Department of the Interior limiting the scope of ITAMPs
to forest resources and surface leases. From the northwest tribes'
perspective, what other resources might tribes want to include in these
plans?
Answer. ATNI is still considering an appropriate definition and
will provide the Committee with language once finalized. We are
considering, however, a definition that would incorporate the
definition of ``trust resources'' in ISDEAA (25 CFR Sec. 1000.352)
coupled with any resources that are, or have in the past been, included
in any resource management or integrated resources management
agreements approved by the Secretary of the Interior.
Question 5. Your written statement mentions that Title III of the
ITARA authorizes the establishment of an Undersecretary for Indian
Affairs, a high-level position in the Department. What did ATNI intend
for this new position when it worked on Title III?
Answer. The Undersecretary was intended to be a Deputy Secretary-
level position within Interior to coordinate Indian issues that
implicate non-Indian agencies within Interior.
Traditionally, Indian Affairs within the Department of the Interior
has been disadvantaged when it has had disagreements with other larger
land management agencies like the Bureau of Land Management or National
Park Service. The Undersecretary's role is intended to ensure alignment
of policy positions before other non-Indian agencies within Interior
formulate and finalize initiatives or policy positions that affect
Indians without the Indian Affairs personnel knowing about it.
Question 6. What are the primary challenges the ATNI faces when
managing trust assets under the traditional Bureau of Indian Affairs
system?
Answer. ATNI member tribes have expressed concerns over regulatory
constraints on forest management activities, particularly prescribed
burns. As noted in the Tulalip testimony, other tribes have resources
that they would like to manage different types of trust resources.
Question 7. How does ITARA compare to other federal programs aimed
at increasing tribal self-governance in natural resource management?
Answer. I think this has yet to be determined because of the
limited scope of resources the Department of the Interior has
authorized to be included in ITAMPs to date. At this point, ITARA
compares favorably to ISDEAA for the flexibility it has provided the
Cow Creek Band of Umpqua Indians in managing its forest land.
______
Mr. Hurd. Thank you so much, Ms. Schulz-Oliver, for that
testimony. The Chairman will now recognize Members for 5
minutes of questions each, and I will begin by recognizing
myself for 5 minutes.
Mr. Schulz-Oliver, can you talk to me a little bit about,
your testimony is really interesting. My sense is that the
problem is not necessarily in the language of ITARA, but the
way that it is being implemented by the BIA. Is that a fair
characterization?
Ms. Schulz-Oliver. That is correct. The issue is that there
is a narrow view of the definition of the trust assets.
Mr. Hurd. Do you know why that would be?
[No response.]
Mr. Hurd. Or is there a reason given, I should say.
Ms. Schulz-Oliver. Not to my knowledge. It certainly wasn't
intended in the original language of the text of the bill.
And we understand that trust assets can be widely diverse,
and ATNI is committed to working with the Committee to
developing and further refining that definition.
Mr. Hurd. OK. So part of that suggested fix might be making
it clear what the definition of those assets is, then, that it
is broad, that it is not necessarily narrow as the BIA seems to
have interpreted it.
Ms. Schulz-Oliver. That is correct.
Mr. Hurd. OK, thank you.
Mr. Capoeman, you mentioned that ITARA was intended to
empower Tribes. I think that is right. That is a great point.
But it seems to not be doing that with two exceptions here.
One of the things that you mentioned was that there was
little knowledge of ITARA, and that many Tribes are unaware of
those opportunities that comes with ITARA. And then, of course,
as we are hearing today, those who are aware of it and do apply
face lots of confusing and unnecessary restrictions. What
should Congress and the Department of the Interior do to
improve outreach with respect to ITARA?
Is there a role that could be done there to let Tribes know
that this is an option?
Mr. Capoeman. I think every region----
Mr. Hurd. If you could, hit your mike real quick.
Mr. Capoeman. Oh, sorry. Every region within the timber
area should be notified where there are caucuses of Tribes that
come together to be informed of what exactly ITARA is, what its
intent is, how all these Tribes see it moving forward. I think
that is the best way to get the word out and to get some
feedback from Tribes on how it should work.
Mr. Hurd. Mr. Capoeman, if you could change, two or three
things about ITARA, if you could insert the language in the
statute or direct the BIA to do two or three things, can you
name two or three things just off the top of your head that
would be most useful or most productive?
Mr. Capoeman. Well, I think the first thing is follow-
through. I know we have ITARA, and the follow-through on the
side of the BIA to ensure that it is getting done and passed
down to Tribes would be the first thing.
The second thing is to work with Tribes on creating the
best format so that Tribes can succeed with this.
The third thing is ensuring that the dollars to manage and
do this work that was formerly done by the BIA be given to
Tribes, as well, because that is a part of it, right?
Those are the big three that I think need to occur.
Mr. Hurd. Well, thank you very much.
Mr. Gobin, you mentioned the narrow and cramped
interpretation of ITARA, and you talked about the importance of
removing roadblocks. Could you give me a couple of examples of
what are concrete roadblocks that, in your experience, you have
seen thrown up with respect to this process?
Mr. Gobin. Our reservation consists of 22,000 acres. Of
that, much of it is checkerboarded through various policies,
procedures, through history, and has went out of trust into
non-Indian ownership, non-member ownership. So we have, it is
like a three-sided reservation. One side is completely
bordering the water.
So as such, you go along, you have tribal property and then
you have upland non-Indian property. Throughout all of that
process, though, never has the Tribe sold its tidelands. Never
has it relinquished right to the tidelands. And so it creates a
dispute at times. Oftentimes, growing up as a kid, we were told
we were trespassing on our own reservation, and had to deal
with that when we fished commercially, so it is from the shore,
so then you are limited by where you can actually fish anymore,
because now bulkheads have been placed in place there, and you
lose your access to that shoreline at various stages of the
tide.
Those are the major things that you see through time. The
design of bulkheads and that has changed, and there is far more
hard armoring on the shoreline than ever before. And we want to
work with people to redesign, reshape what that shoreline looks
like, while still protecting the habitat and the environments
there and still enjoying the use of the beach.
Mr. Hurd. Thank you so much, Mr. Gobin. I appreciate that.
Thank you, witnesses for your testimony.
My time has expired and I yield back. I will now recognize
Ranking Member Teresa Leger Fernandez for 5 minutes.
Ranking Member Leger Fernandez.
Ms. Leger Fernandez. Thank you, Mr. Chairman. And it
strikes me that 10 years is both a long time and not a long
time, right, and sort of this law was passed in 2016,
apparently probably signed into law by Obama, and then in about
2017 the regulations looked like were passed. And then the
process began for applying.
And right now, you know, we went through another 4 years of
the Biden administration. Now we are back on the Trump
administration, and we only have four Tribes participating. And
I need to give it up to Oregon because three of them are in
Oregon and one of them is in Washington. And so clearly, there
has been a failure of communication so that this is not more
widespread.
And I am wondering, maybe I will go to you, Ms. Oliver, to
give a sense, because you were there when the idea of this
sparked excitement, what can we do so that more Tribes can
learn of this opportunity?
I checked, and it looks like we might have less than 10
actually applying, and we have heard why not. But what is it
that we need to do to expand its breadth outside of the
beautiful Pacific Northwest?
Ms. Schulz-Oliver. Thank you for that question. And to
clarify, I should have mentioned I have only been in this
position for 2 years, so I wasn't there at the beginning, but
that doesn't mean that I am not excited about the bill.
Ms. Leger Fernandez. Yes.
Ms. Schulz-Oliver So I think one of the things that we can
do has been mentioned by my counterparts and tribal leaders
here. One is to eliminate the initial application requirement
under 203(a). There is an inherent sort of way to, not self-
select, but kind of handpick Tribes that are able to
participate in the program. That may be an unintended
consequence, but I think elimination of that requirement might
open up the opportunities for other Tribes to participate.
Ms. Leger Fernandez. So it also strikes me that one of them
is an issue. And we run across this with law enforcement with
638 contracts compacting, that sometimes it is really the
Tribes who have more capacity that are able to do that. If you
have more resources and capacity, you are able to take
advantage where other Tribes aren't. And it just strikes me.
I was looking at some of the numbers that tribal forest
lands receive only $0.40 for every $1 allocated to the National
Forest Service lands. Tribes and BIA manage twice as many acres
per forestry staff member, compared. So you guys are doing a
whole lot with less. And we had both President Capoeman and
President Desautel talk about the fact that you needed more
resources, right? Because if we don't fund the programs, then
when you take it over, even if you were then able to contract
those, you are not bringing enough money down.
Are you concerned about that, that if we don't fund these
programs when you go to take them over, or if we say as part of
the project we need to make sure that you can push those
resources down? What is that sort of like tension that you have
with regards to that?
I will start with President Desautel.
Mr. Desautel. Well, I think that is a very important
consideration, and I think a lack of information in the
difference between what an Indian Trust Asset Management Plan
is and what those flexibilities are versus what a traditional
638 contract mechanism is are important for Tribes to
understand.
And again, the funding is equally important because, I
mean, it makes no sense to develop a plan if you don't have
funding to then implement that plan because the Tribe's long-
term objectives are to do that on-the-ground resource
management to improve conditions and resources for access to
their tribal membership. So without a ready funding source, and
I think Tribes are unsure about what that funding mechanism
would be, they are familiar with the 638 because we have used
it for the last three decades, but for ITARA that a little
unclear.
Ms. Leger Fernandez. Right, and so we need to put that in
the language. And looking at the public law, you are right, it
does not limit.
But President Capoeman, maybe you can answer the question
and then I will yield back.
Mr. Capoeman. Yes, I think what my colleague here said
really hits it on the head.
I mean, if the BIA is not there to do that trust
responsibility, the Tribe is going to take that on and ensure
that that work gets done, and manage those lands, those
resources, and do all those things. Then, in effect, the Tribe
itself takes on that trust responsibility to do that work for
the landowners.
So then, in order to do that work, we need those funds to
pull that off. And whether that is a 638 contract or another
format, they go hand in hand. And I think that is going to be
the big kicker in how this moves forward.
And nowadays, for us to find a forester out there, I mean,
we are undermanned as it is to do the work we have to do, and
under-funded to do the work we have to do, as well. So yes,
they both go hand in hand.
Ms. Leger Fernandez. OK, thank you very much, and I
appreciate your answers.
And I yield back.
Mr. Hurd. Thank you very much, Ranking Member Leger
Fernandez. The Chair now recognizes Mr. Kennedy from Utah for 5
minutes.
Mr. Kennedy.
Mr. Kennedy. Thank you, Mr. Chair. It is an honor to be
here with you and the Committee. And thanks for those witnesses
that took all the time to come to Washington, D.C.
We are grateful to have you here, and I particularly
appreciate that you have pointed out a problem and you have
also offered solutions. Each one of you in your written
testimony have offered us opportunities for us to step in and
try to help. So thank you for that. Many times we have people
pointing out problems, but they are unwilling to give us
options for solutions. So thank you.
I am interested, Mr. Gobin, in your testimony. I wanted
just for clarification sake, Snoqualmie Falls is part of your
ancestral heritage or not?
Mr. Gobin. It would have been under our traditional area,
in our usual and accustomed areas.
Mr. Kennedy. Yes, I have been there many times, a beautiful
area.
And in fact, one of the things that I am interested overall
with all four of you is why the Bureau of Indian Affairs is not
willing to give you the access to the full benefit of what this
10-years-ago law was passed, what it was supposed to do. It is
almost like the BIA has an intent to not execute on the intent
behind our law, that they don't really want you to have full
power. And I am very supportive of States, and in this case the
Tribes, of executing their full power.
So Mr. Gobin, I am curious, and this is where I am
interested, because in your written testimony, thank you for
doing that, you said, ``Today the shoreline is studded with
marinas, parking lots, public buildings, houses, cabins, docks,
bulkheads, and beach access stairways, causing negative impact
on shorelines, on the reservation, and throughout Puget
Sound.'' I have been to those areas. They are beautiful areas.
And what I am concerned about is that the BIA is more
interested in those boats and marinas and docks than they are
in the tribal rights to use those properties in the ways that
they ancestrally are able to. Can you give me an opinion that
you have about why is the BIA not helping you to carry forward
the full intent of the law? Does it have anything to do with
the private property rights of these boats and marinas and
docks?
Mr. Gobin. Yes, certainly I can, and I do have an opinion.
I believe that they are misreading the document because it
uses examples of forestry or land leases. To them it must imply
that it only belongs to that. But this is an Indian trust asset
management. And so, as such, when we go back to the executive
order establishing our reservation, which includes all of the
tidelands to the low water mark, those are held in trust by the
U.S. Government for the benefit of the Tribe.
You do an instant Google search of what is a trust asset
for Tribes, No. 1 is land held in trust for the Tribe. No. 1.
So I am not sure why they are not including that. It makes no
sense to us. But it needs to be changed and reaffirmed. If they
can't determine the intent by themselves, I would ask that the
Committee establish what that is, and clearly identify what
that is, and make it permanent.
Mr. Kennedy. Thank you for that answer. And it does
reflect, the land being held in trust, almost like you can't
handle it yourself, we will handle it for you and give you
whatever ancillary benefits we get around to. It seems like an
inferior position that you are put in as a result of this
somewhat parental relationship that the Federal Government is
putting you in. Would you characterize it that way or in some
other way?
Mr. Gobin. I think you did it very well. It is the paternal
aspect of looking out for this. Or maybe it is the lack of
resources that they have and not willing to expand it further.
Mr. Kennedy. Thank you for that. I am really interested in
eliminating that parental relationship. I believe you and your
people are more than capable of handling these.
We will go to for a moment then Ms. Amber Schultz-Oliver.
Thank you very much for being here. And you recommended
that the demonstration project be made permanent, and I am in
fact interested in that, as well. I think that that could be
good policy. Tell me how you and ATNI came up with that
recommendation.
Ms. Schulz-Oliver. Thank you for that question. I think one
of the things it would do is it more Tribes would be able to
take advantage of this Act. As we heard in testimony, not very
many have been able to submit their plans and get their plans
approved.
And it also allows for longer-term management, rather than
just a short, 10-year period.
Mr. Kennedy. Thank you for that answer.
And Mr. Chair, I will just finish just by saying it seems
like there is an intentional misreading of this law, that the
Bureau has no interest, really, in these people being able to
manage. And the law, as far as I have been led to believe, it
is fairly clear, but the Bureau does not want to allow it to be
read in that clarity. So, whatever I and we can do to help.
Thank you very much, Mr. Chair, for the time to ask these
questions, but I am concerned about 10 years and only 2 Tribes
being allowed to do anything with this law, which seems to be
fairly clear on its face. So thank you, Mr. Chair. I yield
back.
Mr. Hurd. Thank you, Mr. Kennedy. The Chair now recognizes
Ms. Hoyle from Oregon for 5 minutes.
Ms. Hoyle.
Ms. Hoyle. Thank you, and thank you for your testimony. I
have the great honor to represent four tribal nations, two of
which, the Cow Creek Band of Umpqua Indians and the Coquille,
were the first two Tribes in the country to have approved
Indian Trust Asset Management Plans in the Pacific Northwest.
We have been leading the way on forest management.
And I am not going to ask you to assign intent or an
explanation to what the BIA is doing. What I am going to ask
you, specifically, Mr. Desautel, I would like you to share some
of the positive benefits from these agreements both for the
Tribes and then also for the surrounding communities.
Mr. Desautel. Sure, thank you for the question.
So from the tribal perspective, under an approved trust
asset management plan they have more discretion on setting
priorities, establishing timelines, and really circumventing
some of those bureaucratic processes that would exist if those
were BIA-approved plans. So that is particularly beneficial for
some of the smaller Tribes that maybe have smaller acreages to
manage, smaller staff and capacity to deal with those types of
NEPA documents, which I am sure this Committee knows are very
complicated. So I think that provides a lot of flexibility that
allows implementation to flow much easier.
It also allows them to be more flexible if there is
shifting priorities. In Coville for example, extensive amount
of a wildfires on our reservation over the last decade, and we
could shift what our priorities were and what forest health
treatments would be done first versus next.
And then from across a jurisdictional, co-management type
approach, it gives them the ability to work with their
neighbors more flexibly so under State regulations things move
faster, private industry regulated by the State can move
faster. So really, we are just looking at our Federal partners
at that point. What can we do collectively across the landscape
to mitigate risk, to improve forest health and management, to
improve those other resource benefits that are critical for
everybody in our communities: clean water, clean air, healthy
landscapes?
So I think those are tools that are very, very valuable
when you have more flexibility from a management perspective.
Ms. Hoyle. Thank you. And I think we spoke earlier about
the potential of having field hearings, certainly with the O&C
lands in Oregon and having examples of tribal nations that have
used the Indian Trust Asset Management Plan with the
checkerboard pattern so we can see forests managed by Tribes
next to forests managed by the Forest Service and the BLM and
private lands, and where our wildfires go. I think it is clear
that Tribes manage for future generations and in a holistic
nature. Certainly, with millennia of experience relying on
Tribes for co-management or assigning Good Neighbor Authority
or this program is absolutely the most important thing we can
do, and I am hoping I can get my colleagues to also agree to
field hearings.
Now, in your testimony you discussed the 2023 Indian Forest
Asset Management Team report that included recommendations for
improving management of Indian forests. How can the Committee
support the work to implement those recommendations?
Mr. Desautel. Well, I think first holding an oversight
hearing would be very beneficial. While you have seen the
report, I am sure you see lots of reports on a daily basis, so
having an opportunity to discuss those issues, what the
recommendations of the report were, and how we can pass policy
or legislative bills that would be beneficial in addressing
some of those issues. That would include management
perspectives, funding limitations or challenges, and a vast
array of other things. Again, several hundred recommendations
from the report.
But I know that we requested the oversight hearing. We
tried to schedule a field hearing because there is just not a
replication that we can bring here that shows you what things
look like on the ground. So to the extent the Committee is
willing, we would love to have you. Somewhere out West, I
think, would be a good example to show you some of the work
that is happening on the ground, some of the impacts that are
happening from wildfires, insect, and disease, and some of the
tools that Tribes are using to help mitigate that.
Ms. Hoyle. Great, I absolutely agree. And again, I know
that the Pacific Northwest is leading the way. And being able
to have our colleagues come out and see what is happening there
and, again, figuring out solutions to make sure that we are
being as efficient as possible in managing our forests would be
beneficial for everyone.
Thank you so much for answering the questions.
Mr. Hurd. The gentlelady yields back. Thank you very much.
The Chairman now recognizes the member from Washington, Ms.
Randall, for 5 minutes of questions.
Ms. Randall.
Ms. Randall. Thank you so much, Mr. Chair, and thank you
again to all of you here before us sharing your experience with
the Subcommittee so that we can better support this incredible
work that you are doing.
President Capoeman, you mentioned a little bit of this in
your testimony, but I am wondering if you can expand some about
the importance of asserting greater self-governance over the
issues directly impacting areas like forestry. Why is it so
important?
Mr. Capoeman. Well, first off, the most important part is
that all of us Tribes, you know, have lived in these areas, you
know, since the beginning of time. And we know how to manage
the resource, whether it be the water, fish, timber, land, air,
all of these things. You know, we know how to do this. And how
that impacts our tribal members on the ground every day is what
matters not just for today, but for those yet unborn. That is
the critical piece for all of us. And how we do that, that has
been the mystery for us working with Federal agencies is how do
we put that piece together to make that happen.
You know, at least in Quinault's case, we have had a
relationship with the Federal Government for 170 years, and it
is weighted more towards a bad relationship more than it is a
good relationship. We want to turn that around. The best way to
turn that around is to allow us the inherent right to govern
our resources in a way that we feel is best because that is
what works. That is what truly works.
And if you come down and you look at our reservation and
you see how some of the things we have implemented there to
protect habitat, to protect land, it truly is working for us,
and that is the model. Those are some of the models we would
like to see go forth. And we have recommended some of those
things in this document here as a way to get this to the next
stage. And so I hope the Committee really considers keeping
this on as a project that is not just a project, but something
that is there and that Tribes can use, and no longer a
demonstration project, but something that is done. So that is
what we would like to see.
Ms. Randall. Thank you. And you know, we have heard that
you are still in the process of finalizing the Indian Trust
Asset Management Plan under ITARA. Can you speak a little bit
to the successes, but also the ongoing challenges you faced as
you navigate this process?
Mr. Capoeman. Yes, yes. I think a lot of the challenges
have been, like I said, the follow-through from the BIA on how
we should do this, the communication piece.
I mean, it seems to me like there is a force. The BIA is
the force. It has been done a certain way for so many years, it
has been done this way by the BIA, that there is like an
ownership, there is a fear of letting go and letting Tribes do
what we have done. And I think that is what has been holding
this up. And how we get beyond that is we have more hearings
like this, I mean, we have some action plans that come out of
this that guide us to a more complete project.
Ms. Randall. Thank you so much.
And Ms. Schulz-Oliver, just a few seconds. Can you touch on
how the trust asset management plans can be a strategic tool
for climate resilience, which is such an important issue for I
know those of us on the Olympic Peninsula?
Ms. Schulz-Oliver. Yes, thank you for that. I think one of
the key elements of the plans is that Tribes can elevate their
priorities. And many of our Tribes, especially in the ATNI
region, do have an eye to making sure that our resources are
protected from the impacts of any climate actions.
Ms. Randall. I yield back.
Mr. Hurd. The gentlelady yields back. I want to thank the
witnesses for their valuable testimony and also my colleagues,
the members, for their questions.
Members of the Committee may have some additional questions
for the witnesses, and we would ask that you please respond to
those in writing. Under Committee Rule 3, members of the
Committee must submit questions to the Committee Clerk by 5
p.m. on Friday, February 28, 2025. The hearing record will be
held open for 10 business days for these questions.
If there is no further business, without objection, the
Committee stands adjourned.
[Whereupon, at 3:25 p.m., the Subcommittee was adjourned.]
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