[Senate Hearing 111-542]
[From the U.S. Government Printing Office]
S. Hrg. 111-542
WHERE'S THE TRUSTEE? U.S. DEPARTMENT OF THE INTERIOR BACKLOGS PREVENT
TRIBES FROM USING THEIR LANDS
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
DECEMBER 9, 2009
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota LISA MURKOWSKI, Alaska
DANIEL K. AKAKA, Hawaii TOM COBURN, M.D., Oklahoma
TIM JOHNSON, South Dakota MIKE CRAPO, Idaho
MARIA CANTWELL, Washington MIKE JOHANNS, Nebraska
JON TESTER, Montana
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
Allison C. Binney, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
Hearing held on December 9, 2009................................. 1
Statement of Senator Bennett..................................... 1
Statement of Senator Dorgan...................................... 1
Statement of Senator Franken..................................... 10
Statement of Senator Tester...................................... 11
Statement of Senator Udall....................................... 8
Artman, Carl J., Professor of Practice, Sandra Day O'Connor
College of Law, Arizona State University....................... 18
Prepared statement........................................... 21
Bailey, Hon. Derek, Chairman, Grand Traverse Band of Ottawa and
Chippewa Indians............................................... 24
Prepared statement........................................... 26
Skibine, George, Acting Principal Deputy Assistant Secretary for
Indian Affairs, U.S. Department of the Interior; accompanied by
Vicki Forrest, Deputy Bureau Director for Trust Services....... 2
Prepared statement........................................... 4
Box, Hon. Matthew J., Chairman, Southern Ute Indian Tribal
Council, prepared statement with attachments................... 56
Fink, Hon. Elaine, Chairperson, North Fork Rancheria of Mono
Indians of California, prepared statement...................... 53
Finley, Hon. Michael, Chairman, Confederated Tribes of the
Colville Reservation, prepared statement....................... 64
Intertribal Monitoring Association on Indian Trust Funds (ITMA),
prepared statement............................................. 54
Nelson, Glenda, Chairperson, Estom Yumeka Maidu of the Enterprise
Rancheria of California, prepared statement.................... 53
Pigsley, Hon. Delores, Chairman, Confederated Tribes of Siletz
Indians of Oregon, prepared statement with attachments......... 37
WHERE'S THE TRUSTEE? U.S. DEPARTMENT OF THE INTERIOR BACKLOGS PREVENT
TRIBES FROM USING THEIR LANDS
WEDNESDAY, DECEMBER 9, 2009
Committee on Indian Affairs,
The Committee met, pursuant to notice, at 10 o'clock a.m.
in room 628, Dirksen Senate Office Building, Hon. Byron L.
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. The Committee will now turn to another
subject for today, and that is the subject of the Department of
the Interior backlog that has existed that prevents tribes from
being able to use their lands and take lands into trust and
I want to make a comment that I have been asked to go to
the White House. I believe I have to leave here about 10:25 for
a meeting with the President on jobs, the jobs initiative. And
I have asked whether Senator Udall would be willing to chair
the remainder of the hearing when I have to leave in about 25
This next topic will examine backlogs at the Department of
the Interior in processing land transactions. These are very
important issues. Land holds a very great spiritual and
cultural significance to Indian tribes. The tribal land base is
the necessary building block for tribal governments to provide
housing, economic development, and other essential government
services to its citizens.
In the last session of Congress, we held two hearings on
the backlogs at the Department of the Interior. Between the
first and second hearing, the Department showed the Committee
some measure of progress. However, we now have a new Assistant
Secretary who faces those same backlogs and it seems to me that
we are close to being back to square one.
Throughout the years, we have heard from many, many tribes
about the impacts that delays in decision-making at the
Department have on their ability to govern. We have heard that
applications for trust lands, for lease approvals, for
appraisals will languish for many, many years, then years old
applications are returned by the Department because the
information is stale.
At the Committee's hearing in 2007, we heard from the
Standing Rock Sioux Tribe who told us about their pending trust
land applications. At the time, the tribe's pending
applications had been pending for up to a decade or more.
Today, more than two years later, the situation at the Standing
Rock Reservation has not changed, according to the Standing
Rock tribal officials.
Of the tribe's 11 pending applications, two have been
pending for more than 10 years and the others have been pending
for over five years. Some of the applications the tribe
submitted are not listed as pending because they are not yet
logged into the system. At the same time, these applications
haven't been returned to the tribe for more information. They
just remain in limbo with no action.
The same problem exists for pending environmental impact
statements which can cost tribes close to $1 million to
complete. If they are not reviewed in time, a tribe may have to
start all over and submit an impact statement, spend another
large sum to complete the impact statement, and possibly cost
the tribe a lot of money that they need for economic
This isn't a new issue, but it is one that this Committee's
been looking for the Department to make progress on. We are
looking for a plan to deal with the land backlogs and come up
with a way for the Bureau to better communicate with the tribes
so that they can be aware of the status of their applications.
It is not acceptable to have applications sit on a desk for 10
years with no action.
Last Congress, we pushed and will continue to push this
Congress to monitor the status of these backlogs at the
Department. And we are going to hold another hearing in six
months to find out what has been done in the last six months.
So with that, I want to welcome Mr. Skibine, Acting
Principal Deputy Assistant Secretary for Indian Affairs,
accompanied by Vicki Forrest, the Deputy Bureau Director for
Trust Services, as panel one.
We will proceed with your testimony, Mr. Skibine.
STATEMENT OF GEORGE SKIBINE, ACTING PRINCIPAL
DEPUTY ASSISTANT SECRETARY FOR INDIAN AFFAIRS, U.S. DEPARTMENT
OF THE INTERIOR; ACCOMPANIED BY VICKI FORREST, DEPUTY BUREAU
DIRECTOR FOR TRUST
Mr. Skibine. Thank you, Mr. Chairman. Good morning, Senator
Udall and Senator Franken. I am pleased to be here to present
the testimony of the Department on the hearing entitled Where's
the Trustee? Department of the Interior Backlogs Prevent Tribes
from Using Their Land.
Accompanying me today is Vicki Forrest, who is the Deputy
Bureau Director for Trust Services.
My testimony will be made part of the record. What it
includes is updates on all the issues that were discussed in
the previous two hearings, including where we are on probate,
where we are on trust land acquisitions for non-gaming
purposes, where we are on environmental impact statements,
where we are on appraisals, and where we are on lease
One of the things that I witnessed over the past eight
years, and it is not necessarily why we are where we are today,
but before Carl Artman became Assistant Secretary for Indian
Affairs, before that under the Bush Administration, essentially
what I witnessed is that trust acquisitions were not a priority
for the Department. In fact, even though there was nothing
written, essentially what the Regional Directors were told was
that acquisition of land in trust for tribes should be the
least of your priorities.
So with that, those marching orders, I think that it is no
wonder that to a certain degree before Carl Artman came on and
essentially reversed course on that, there was a failure from
our Bureau to move in that direction.
And the reason for that, I think, was at the time of Cobell
the Administration essentially thought, well, we have the
Cobell, the trust fund litigation. We have now almost 100
lawsuits, tribal trust lawsuits challenging the BIA on
mismanagement of trust resources. Why on Earth would we acquire
more land into trust if we can't even manage what we have now?
And so with that, there was essentially, certainly not a
priority, in fact, to take land into trust. So to take land
into trust for individuals was totally stopped at the time. And
off-reservation acquisitions were sent to central office for
review, where essentially they sat there. And I think before
Mr. Artman came on board, maybe one in six years had been
In addition, there was at the time a move, I remember, from
the Administration to sort of dissuade tribes from taking land
into trust because they said it would not actually help
economic development, but hinder it. And the thinking there was
that you cannot leverage land if it is in trust because there
can be no encumbrances on the land.
What I am here today to say is that when Larry Echo Hawk
came on board, essentially things changed completely in terms
of the Administration's overall priority. And the taking land
into trust for Indian tribes is now one of the Assistant
Secretary's major priorities, in addition to education, law
enforcement, and energy development.
And with that, I think that the marching orders to the
Bureau of Indian Affairs will be to essentially make sure that
this program becomes one of the priorities that we have.
And with that, I think I will say that this is kind of one
of the few things that we have looked at. Under Ms. Forrest's
direction, we have published a fee to trust handbook which is
something that we are doing in consultation with tribes to help
facilitate the process and make it more transparent. We have
re-delegated the authority to take non-gaming off-reservation
land into trust to the Regional Directors.
I recommended that move to the Assistant Secretary after I
testified on the House side on some bills on Northwestern
tribes, where what they were trying to do is bypass central
office review of their off-reservation acquisitions because of
the fact that they were not going anywhere.
And even though we are, this was no longer a backlog, we
took a look at why there was central office review of non-
gaming applications for off-reservation, and we felt that there
was really no point in doing that. So we have sent this back to
the regional offices, and in that sense it will cut off some of
the time it takes to process these applications.
The other thing we are doing is, what we could do is
essentially look at our regulations, 25 CFR Part 151. Now, that
is a very touchy subject. I think, for instance, I remember
Carl Artman wanted to look at possibly reopening 151, but the
National Congress of American Indians and Indian tribes in
general were very opposed to that.
But we are well aware that in the 151 regulations, there
are no deadlines placed on the Department. And one of the
issues that came up when Kevin Gover was trying to revise the
151 regulations in the late 1990s was that tribes complained
about this lack of deadline. I think we tried to include it in
those regs. Those regs were essentially finalized, but pulled
by the Bush Administration when they came into power.
Another thing we are of course looking at, and which is not
necessarily a big issue, is the fact that the Carcieri decision
came down in February of last year. We, of course, as Del
Laverdure, our Deputy Assistant Secretary, testified on the
House side, support a Carcieri fix to amend the Indian
Reorganization Act. And so we are all on board on that, and we
think that will certainly avoid some potential backlogs and
lawsuits that may be generated in some cases.
And that said, I think that one, of course, of the things
we would like to say that is as we take land into trust, it is
of course important to have the resources to manage those
lands, especially the lands under these trust resources. So we
will take a look at that.
And with that, I would like Ms. Forrest to tell us a little
bit about what is it that she has been doing at the direction
of the Bureau Director, Jerry Gidner, who has the
responsibility for essentially improving the process and what
other things we are looking at in order to make the system work
[The prepared statement of Mr. Skibine follows:]
Prepared Statement of George Skibine, Acting Principal Deputy Assistant
Secretary for Indian Affairs, U.S. Department of the Interior
Good morning Mr. Chairman, Vice Chairman, and members of the
Committee. Thank you for the opportunity to provide the Department of
the Interior's (Department) update on the current status of backlogs in
Indian Affairs. As you know, the Department provided updates on
``backlogs'' previously on October 4, 2007, and on May 22, 2008 in
oversight hearings on land into trust applications, environmental
impact statements (EIS), probates, and appraisals. In those testimonies
provided to this Committee, overviews of each item and the procedures
that Indian Affairs' follow, as set forth in statute and regulation,
were included. Therefore, my testimony today will focus on our updates
on current numbers in probate, land-into-trust acquisitions for non-
gaming purposes, environmental impact statements, appraisals, and
commercial leases. My testimony will also address a few accomplishments
since the last hearing in May 2008.
In prior testimony we stated there are four phases for the
completion of a probate case. Using the ProTrac system, BIA monitors
the performance of each case at each phase all the way through
distribution of assets to the heirs. These phases are: (1) Pre-Case
Preparation; (2) Case Preparation; (3) Adjudication; and (4) the
Closing Process. As of November 20, 2009, the Division of Probate was
monitoring 71,238 cases, of which 16,099 were currently moving through
the probate process and 55,139 had been distributed and closed,
determined to have no trust assets requiring a Federal probate, or
otherwise required no current Federal action.
In May 2008 we stated before this Committee that as of April 28,
2008, 99 percent of the backlog cases completed the case preparation
phase and were ready for adjudication and distribution of assets, and
88 percent of the backlog cases had been closed.
Those percentages we presented in May 2008 were used to demonstrate
that the BIA was still on track to clear the probate backlog by the end
of 2008. An independent audit of the probate workload, conducted in
2009, concluded that probate backlog casework is substantially complete
and no longer represents a management issue for the BIA.
We also stated that by this year, 2009, BIA staff should be able to
handle the probate cases without help from outside contractors.
Administrative requirements to re-compete the primary probate casework
contract delayed completion of the Probate Caseload Reduction project.
Project completion is now anticipated mid-year 2010. Upon successful
completion, the Division of Probate should be able to handle the
ongoing probate caseload in a timely fashion without contract
Trust Land Acquisitions for Non-Gaming Purposes
Significant progress has occurred in processing land-into-trust
requests. We stated in our May 2008 testimony that we implemented a
fee-to-trust tracking system.
Last year we reported that we had received 1,489 requests, \1\
including the 215 applications that were prioritized in October 2007.
As of November 20, 2009, 99 of the priority applications had been
completed or withdrawn by the applicant and determinations had been
made on additional 99 applications.
\1\ These applications were either opened after October 10, 2007 or
were in our possession as of that date and have not yet been completed.
In October 2008, BIA published a Fee-to-Trust handbook. This
handbook standardized procedures for reviewing and making
determinations on on-reservation land-into-trust applications. Six
months later, after meeting with over 100 tribal leaders, Indian
Affairs removed a major logjam from the process by revoking a standing
policy requiring applications for off-reservation lands to go through a
Central Office review. While Central Office continues to provide
assistance upon request, decision authority for all land-into-trust
applications has been delegated to the Regional Offices. Applications
have been returned to the Regional offices with recommendations, and
the final actions are now taking place at the regional level.
Currently, we have received a total of 1,935 requests. As a result
of the standardization and streamlining efforts, 454 of the requests
have been completed or withdrawn by the application and determinations
have been made on 342. Seven hundred and sixty four of the pending
requests are for land located within, or contiguous to, the tribe's
reservation boundaries and are non-gaming. The remaining requests were
either submitted by individuals, located off-reservation, or by tribes
with no historical reservation lands, or were for gaming or gaming-
However, since February 2009 an additional challenge presented
itself in the U.S. Supreme Court's decision in Carcieri v. Salazar.
The Department was, and continues to be, disappointed in the
Court's decision in the Carcieri case. The decision was not consistent
with the longstanding policy and practice of the United States to
assist all tribes in establishing and protecting a land base sufficient
to allow them to provide for the health, welfare, and safety of tribal
members, and in treating tribes alike regardless of the date of
acknowledgment. The Court's decision hinders fulfillment of the United
States' commitment to supporting Tribes' self-determination by
clouding--and potentially narrowing--the United States' authority to
protect lands for tribes by holding the lands in trust on their behalf.
Furthermore, the Carcieri decision has disrupted the process for
acquiring land in trust for recognized tribes by imposing new and
undefined requirements on applications now pending before the
Secretary. The decision has called into question the Department's
authority to approve pending applications, as well as the effect of
such approval, by imposing criteria that have not previously been
construed or applied.
Environmental Impact Statements (EIS)
In our October 4, 2007 and May 22, 2008, testimony, we provided
extensive comments on the National Environmental Policy Act (NEPA)
environmental review process with a focus on the Environmental Impact
Statement (EIS) process. As stated in those testimonies, we do not have
a backlog of EISs. The cases described below are pending applications
that are currently under review.
When an Indian tribe submits a request to the BIA to fund, issue a
permit for, or approve a proposed action requiring a BIA federal
action, the BIA determines the proper level of NEPA review. For certain
actions that don't have the potential for significant environmental
impacts, BIA may issue a Categorical Exclusion (CE) and the NEPA
process is complete. If the application does not qualify for a CE, an
Environmental Assessment (EA) must be completed. The EA will lead
either to a Finding of No Significant Impact (FONSI) or to a
determination that the effects of the Federal decision may have a
significant environmental impact and a decision to perform an EIS.
The length of time necessary to prepare an EIS depends on the
complexity of the proposed project. The time frame depends on several
factors. For instance, other agency needs and requirements must be
taken into consideration. In addition, public comment may point out
weaknesses in the EIS that require further studies or assessments
before the Final EIS may be issued. Additional time may be required to
coordinate and meet other agency needs and requirements on the EIS.
Delays also occur when the Federal EIS is stalled because the tribe
alters the project plan or scope.
The BIA currently has the following pending EIS's: Pacific: 17,
Northwest: 5, Eastern: 3, Midwest: 1, Navajo: 1, Great Plains: 1, Rocky
Mountain: 1, Southwest: 1 and Alaska: 0, Western: 0, Eastern Oklahoma:
0, and Southern Plains: 0.
In prior testimony, we stated that in FY 2002, pursuant to
Secretarial Order, the management and operation of the real estate
appraisal function was transferred from the BIA to the Office of the
Special Trustee for American Indians (OST). This transfer was conducted
to eliminate the appearance and potential for a conflict of interest
that could arise in response due to the reporting structure that
required appraisers to report to the BIA Regional Directors who were
requesting the appraisal. In FY 2005, funding for the program likewise
was transferred to the OST.
Appraisals are requested by the BIA when required for a trust
transaction. The BIA issues the appraisal request to the OST Office of
Appraisal Services (OAS) which conducts the appraisal and returns the
completed valuation to the BIA for its use. OAS appraisers aim to
complete appraisals to meet the due dates requested by BIA.
Currently, OST's OAS has 1,754 appraisal requests pending, of these
257 are past due. Of the total number pending, approximately 50 percent
are scheduled for completion by the end of the month. OAS is
implementing a new tracking system that is scheduled for deployment by
March 31, 2010. OAS continually evaluates appraisal processes to
streamline efficiencies while ensuring that valuations comply with the
Uniform Standards of Professional Appraisal Practice (USPAP).
In May 2008, we made a recommendation based on the fact that
commercial development leases may involve tribal land, allotted land,
or both, and those leases were typically negotiated by representatives
of the parties. As a result, the appraisal needed to establish an
acceptable ``Minimum Rent'' and the documentation needed to comply with
NEPA, are often not obtained by the lessee until after the basic lease
terms have been agreed upon. We continue to recommend that outside
appraisals be accepted, as an alternative to appraisals performed by
the Department's Office of Appraisal Services (OAS), and submitted for
review and approval by the OAS.
In May 2008, we reported that we had 93 commercial leases pending
approval. In our twelve Regions, we have three Regions with no
backlogs: the Southern Plains Region, Eastern Region and the Eastern
Oklahoma Region. The remaining regions have leases that have been
pending for over 30 days, as follows: Alaska Region-1, Navajo Region-1,
Midwest Region-1, Great Plains Region-8, Rocky Mountain Region-8,
Pacific Region-9, Western Region-19, Northwest Region-22, and the
Currently, we have 69 commercial leases pending approval for 12
months or longer. Seven regions reported no outstanding commercial
lease applications: Alaska, Eastern, Midwest, Navajo, Rocky Mountain,
Southwest and Western. The remaining regions have pending leases as
follows: Eastern Oklahoma: 1, Great Plains: 1, Pacific: 13, Northwest:
52, and Southern Plains: 2.
This concludes my testimony. I will be happy to answer any
questions the Committee may have. Thank you.
Ms. Forrest. Thank you.
Thank you, Mr. Chairman. Thank you, Senator Udall, Senator
Franken. I am happy to talk about the great accomplishments the
Bureau has made in the last two years since I have been here on
the land into trust process.
As Mr. Skibine mentioned, we issued the fee to trust
handbook at the direction of Mr. Artman. He placed a high
priority on that for BIA. It standardized the processes for the
first time in the history of BIA. In April of this year, we
held our first annual land into trust dialogue with tribes to
talk about the usefulness of the handbook with tribes and BIA
staff. From that, I believe came, because it was a comment from
many tribes, was the central office review of off-reservation
applications. So that did decrease a big logjam that was in the
We are also happy to talk about increased communication
with tribes with BIA staff. We have really encouraged our staff
to meet regularly with tribes, and in fact, it is my
understanding at Standing Rock they have a weekly meeting to
talk about land into trust applications. So we encourage all of
our staff to continue to do that in order that everyone is
aware of the process and exactly where the applications are.
Going forward, as Mr. Skibine mentioned, Mr. Echo Hawk has
also placed a high priority on land into trust for BIA staff.
We want to refine that handbook based on the comments that we
receive from tribal leaders, and we continue to dialogue with
tribal leaders about that.
Although that was one meeting in Albuquerque, several
tribes wanted regional meetings to talk about the use of the
handbook and the way that we process land into trust
applications within the current regulations. So I am hoping
that we get out into, I believe tribes from the Northwest,
Pacific and Midwest wanted to host those meetings, and I would
be happy to attend those on behalf of the Bureau. We are also
reviewing inconsistent policies that we may still have and
practices that we may still have at the regions currently. So
we are actively doing that.
We want to further increase communication with tribes and
BIA staff to include a web page that is going to have a
comprehensive informational site for tribes, as well as BIA
staff about the land into trust process. We are going to
develop and implement a web-based training for tribes and BIA
staff, as well as formalize curriculum at our National Indian
Programs Training Center in Albuquerque, New Mexico. So we are
very excited about those steps.
As George mentioned, we also want to develop a framework of
staffing, training and performance measures that facilitated
the great success that we saw in our probate backlog. So those
are some of the steps that we are actively involved in to
ensure that we have a more effective and efficient process on
behalf of tribes.
The Chairman. Thank you very much for your testimony.
Let me describe just for a moment what has piqued my
interest about all of this the last few years.
I was at a tribal visit and they showed me their brand new
building, a big beautiful building. I think it was two or three
stories and it was empty. And I said, what is that building?
Well, that is a building we built for offices, a commercial
office building. And I said, why is it empty? They said,
because we can't lease it until we get approval for leasing it
from the BIA and the request for approval has been there for
about a year. So the building sits empty for a year. So I am
thinking to myself, wait a second, what is that about?
And Standing Rock Reservation applies for the opportunity
to take some land into trust for a cemetery, and one would
expect, well, all right, if the tribal government has decided
they want to take some land into trust for a cemetery, you
know, within a reasonable period of time, they would get a
judgment, at least, about that. And my understanding is that I
think that has been pending between 5 and 10 years.
So as I look at all of this, we now have, my understanding
is, according to Department of Interior current data, about
1,935 total requests, and I am not suggesting that when
somebody submits something, you all get a big old rubber stamp
to say ``approved.'' That is not my suggestion at all. I want
you to look at these things and make good judgments about them.
But appraisals, for example, according to DOI, we have
1,754 pending appraisal requests; 254 of them are past due; 50
percent are scheduled for completion by the end of this month.
What has occurred that they can now clear 50 percent by the
end of this month? Is it this hearing? If so, I want the
process to be a process that doesn't have to be prodded by a
So all of these things have persuaded me that we need a
process by which a tribe should not have to expect to wait 5 or
10 years for somebody to make a judgment. That is like passing
paper and glue, or perhaps not even glue because some of it is
lost, as we know. So that is the stimulant for holding this
I indicated that I have to leave for the White House for a
meeting on jobs, and I am going to ask at this point Senator
Udall to take the Chair and proceed. But this is an issue that
doesn't get a lot of attention, but it is very, very important
to all the tribes.
I know Senator Franken will be visiting a tribe in January
in Minnesota, and it is not related exactly to this issue, but
he will be seeing, I believe, a building that is empty on that
Minnesota tribal property, and that is because two Federal
agencies didn't coordinate what they were doing properly, a
building that I believe was built for juvenile justice purposes
and the money doesn't exist to run it.
It is just frustrating to all of us. We want you to
succeed. Mr. Skibine, you have testified many times and I give
you credit for wanting to do the right thing. The question is,
are we making real progress? Can a tribe that submits a request
today for trust status or an application, can they reasonably
expect that in a decent period of time they are going to get a
response? Or is this going to go into this deep abyss, this
application never to be heard from again?
So that is the question, and I am going to call on my
colleague to come over and take the Chair.
Senator Udall, thank you very much for being willing to do
that while I leave for the White House.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. [Presiding]. Thank you, Senator Dorgan.
Could you respond to Senator Dorgan and his, I guess,
question and comments there on what is happening with those
numbers and where we are headed here?
It is good to see Senator Tester here, too.
Mr. Skibine. Okay. I think that the overall response is
that this is definitely in this Administration under Assistant
Secretary Larry Echo Hawk, this is certainly not going into a
black hole where we are going to have a problem with taking
land into trust. So progress, I think, is directive and under
his administration, this will change, as it is one of his
So I can essentially assure you that we will make progress
in taking land into trust for non-gaming purposes.
There is no reason for the process to take forever. The
regulations 151 are fairly simple. That process should be done
fairly quickly, and really, in terms of getting a decision, it
should not be an endless process.
Now, one of the things that does happen is if, even when we
decide to agree to take land into trust, and we publish a
notice in the Federal Register, there needs to be no
encumbrances on the land before it can be taken into trust. And
sometimes that takes years.
I remember when I was the Director of the Indian Gaming
Office, for instance, in 1995, we agreed to take land into
trust for the White Earth Band of Chippewas, and we published,
and so we did an approval. And I know that 10 years later, it
turned out that the land still had not been taken into trust
because there were liens on the property. So that is one of the
issues that occurs. But in terms of the process for that, we
will definitely make progress.
And in terms of the one issue you raised with appraisals, I
think that is a function of the Office of Special Trustee,
which is not part of our office of Indian Affairs. So there
should be, the Special Trustee should be addressing the issues
for any backlogs in appraisals.
Now, if Ms. Forrest can give an update on the figures that
Senator Udall asked in terms of the progress we have made in
the past year.
Ms. Forrest. The way that we currently manage the land into
trust applications is a system that tells us what applications
are in the system, the tribe that submitted the application,
and the status of that application. So we started tracking in
October of 2007. Since then, we have approved 86,000 acres to
be taken into trust.
So what we work with the staff on is, as we look at the
status of each part of the process, whether it be environmental
compliance, the public comment period, working with local and
State governments on any land use issues, jurisdictional
issues, tax consequences issues, then we provide technical
assistance in that way.
Currently, we have, as the Chairman stated, 1,935 requests;
454 of those have been completed or withdrawn by the
applicants, and determinations have been made on 342; 764 of
the pending requests are for land located within or contiguous
to the tribe's reservation boundaries and are non-gaming. The
remaining requests were either submitted by individuals or
located off-reservation by tribes with no historical lands or
for gaming or non-gaming, or gaming-related purposes, excuse
me, which my office does not handle. It is just non-gaming
So we continue to monitor the progress of the applications
and want to increase communication with tribes, encourage our
staff to do that, train our staff appropriately, have the staff
available that is devoted to this process.
So as Mr. Skibine stated, that is one of my highest
priorities for this year.
Senator Udall. Ms. Forrest, do you have a time line for
eliminating the backlog?
Ms. Forrest. In 2007, what we looked at was some
prioritized applications, and the way that we did that, because
I want to be very clear that no tribe has priority over any
other, what we looked at was the status of the application in
terms of how far it was to completion. So at that time, we
prioritized 215 of those, and I am happy to say that 198 of
those have been brought into trust; 14 of those still require
some title issues, as Mr. Skibine was talking about, so we work
with the tribe on those. Two still have environmental
compliance issues. We continue to work with the tribe on those.
And then one is at our office for review at the request of the
Although the decision-making ability for non-gaming
applications, whether they are off-reservation or on-
reservation, are at the regions. If the region requests our
assistance, then we ask that they send those to central office.
Senator Udall. Thank you, Ms. Forrest.
Senator Franken is recognized for questioning.
STATEMENT OF HON. AL FRANKEN,
U.S. SENATOR FROM MINNESOTA
Senator Franken. Mr. Skibine, I just want to clarify
something for myself here. Basically, what you are saying is
that this was not a priority until when exactly?
Mr. Skibine. I think that it was not a priority until Carl
Artman became Assistant Secretary for Indian Affairs in the
latter part of the Bush Administration. And I think he
committed to the tribes that he would begin to change that to
address their concern, because there was at that point I think
a lot of dissatisfaction with tribes for the lack of action on
taking land into trust. And I think Carl is back here
somewhere, but he became Assistant Secretary in 2006.
Ms. Forrest. In 2007.
Mr. Skibine. In 2007. Okay.
Senator Franken. Okay, so in 2007, it sort of changed?
Mr. Skibine. Right.
Senator Franken. Because of him, one guy?
Mr. Skibine. Well, he needs to get a lot of the credit for
that because there certainly wasn't much support for that with
the rest of the Administration.
Senator Franken. Yes. You know, you have testified here
before, and we hear a lot about backlogs. Was there some sort
of lack of attention paid during those Bush years in terms of
backlogs on things? I mean, were backlogs accumulated during
Mr. Skibine. I think that they probably were. I don't have
figures with me, but certainly with respect to acquisitions for
off-reservation, non-gaming off-reservation acquisitions I know
there was a backlog because for years there were none that were
essentially approved, and at that time it required central
office approval and it just stayed there. Maybe one was
approved, but that was about it.
Senator Franken. What consideration is given to fast-
tracking stuff? I mean, you were talking about certain
priorities. But fast-tracking things, things that are easy to
resolve--is there any consideration to saying let's do
unobjectionable claims that are easy to do? Let's just do them
Mr. Skibine. I think that, yes, that is one of the things
that our Assistant Secretary has asked us to look at. So Mr.
Gidner and Ms. Forrest are going to start looking at that and
what we can do. We will also probably continue to consult with
tribes to see what it is that they see we can do to facilitate
The important thing is that the attitude of the
Administration now is to make this work and to make it work
better, so that we are anticipating essentially solving some of
the issues that we have.
One of the things that we are bound by that is another
thing that takes a long time is compliance with the National
Environmental Policy Act. If the tribe intends a change in the
land use, there needs to be compliance with NEPA, which
requires either an environmental assessment or an environmental
impact statement. And I know that, for instance, in the area
that I know best in gaming, these EIS's take at least a year to
compile. So that takes a while.
Senator Franken. So that is an example of one that is less
easy and less simple. But are there ones that just come to you
and you say, ``man, we can expedite this right away'' ?
Mr. Skibine. Yes. If there is no change in land use and
essentially, there is no objection from the local community,
there is really no reason for these applications to take long
at all. And so, it is all delegated to the region. We will
essentially look into, have our Regional Directors accountable
to make sure that applications that are submitted are not
essentially forgotten, since it is a priority of the
Senator Franken. Okay. Does that seem to come from the top?
Mr. Skibine. Yes. I think that Secretary Salazar is
essentially totally on board with this priority.
Senator Franken. Okay. Thank you very much, Mr. Chairman.
Mr. Skibine. Okay.
Mr. Udall. Thank you, Senator Franken.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Well, thank you, Chairman Udall, and that
sounds pretty good. You will have to see if Byron is willing to
give that up.
Senator Tester. Byron does a great job, make no mistake
I need to get educated here just a little bit, and maybe it
is you, Ms. Forrest, who can do it. Can you tell me, do you
have the figures telling me what the average backlog was in,
say, 2006 compared to what the average backlog is today?
Ms. Forrest. For land into trust applications, Mr. Skibine
had just been talking about the off-reservation applications
that we had at Central Office. And during that time, under Mr.
Artman's direction, we cleared out every one of those. There
were 42 of those that had been sitting there during the last
Administration before Mr. Artman got there, and he directed us
to quickly clear those out and send those back out to the
We started tracking fee to trust applications in general in
October of 2007. So I would have to rely on my experience with
what was at the office, I have been there for two years, what
was at the office when I got there, and the priority placed on
getting those applications, some that had been there for quite
a long time, back out to the field to be processed and going
forward. But we started tracking the numbers in October, 2007.
Senator Tester. Okay. So what is the backlog right now? How
many days average?
Ms. Forrest. The backlog for fee to trust for that
application, we have not defined. We did for probate and we
have talked about that several times. We can tell you that we
have pending applications. What I don't have in front of me
today is how long they have been in the system. That is not one
of the things that we designed that system to do.
Senator Tester. Okay. So what are you tracking?
Ms. Forrest. We are tracking how many applications in the
system, which tribes are submitting those, what kind of
applications they are, whether they are off-reservation, on-
Senator Tester. So you are just looking at the sheer
numbers and determining by that what the backlog is?
Ms. Forrest. Well, that system was designed to help us work
with the staff in seeing exactly where the application is and
moving along the process. That is what we have been using to
manage the land into trust process with that system.
Senator Tester. Okay.
Mr. Skibine. Well, can I say something? This is one of the
things that we, before this hearing, talked about, and I think
it is a system that does that. And to me, there is no reason
why the system cannot be changed to essentially provide the
date the application is filed, so that we are able to track how
long they are in the system.
Ms. Forrest. Absolutely.
Mr. Skibine. So that is something that we are going to be
Senator Tester. Could you tell me how many applications are
we talking about that are pending right now?
Ms. Forrest. There are 1,935.
Senator Tester. There are 1,935 that are pending right now.
Oh, boy. I mean, I don't want to ask you questions you can't
answer, so I will ask them anyway, I guess. Do you know how
many of those have come in in the last year?
Ms. Forrest. I don't. That is one of the system
enhancements that Mr. Skibine just talked about that we are
Senator Tester. Okay. That is fine. And this could be to
either one of you, whoever is best to answer it. How many of
those applications are dealing with fee land to be put into
Mr. Skibine. I mean, they are all dealing with fee land to
take into trust.
Senator Tester. Aren't some of them, are any of them
dealing with leases, for example?
Mr. Skibine. Oh, no. That is separate. These are
essentially all pieces of land that are in fee and that a tribe
is seeking to place into trust.
Senator Tester. Okay. And then they aren't the ones where
they are going to change use on them, those applications?
Mr. Skibine. No, some of them will.
Senator Tester. Okay. Isn't that already fee land?
Mr. Skibine. Excuse me?
Senator Tester. I mean, isn't that already trust land and
they are trying to change the use of it?
Mr. Skibine. No. If it is trust land, the tribe can change
the use without us having to be involved.
Senator Tester. Okay. So if you have a piece of Native
American land that is already part of the reservation, they can
build an office building on that land and you guys have nothing
to say about it.
Mr. Skibine. That is right. Unless it requires, I mean, it
may require some sort of approval, but, you know, I am not
aware of, in many cases, it doesn't.
Senator Tester. Okay. What about land that is already a
part of the reservation, it is already part of the trust, and
they want to lease oil underneath it to a developer to try to
get some of that oil out of the ground to create some royalty?
Do you have any say on that?
Mr. Skibine. Yes. And essentially we have to approve leases
for oil under 25 CFR Part 151.
Senator Tester. And so the same with natural gas, same with
Mr. Skibine. Right.
Senator Tester. Same with any kind of mining that might
happen? Can you give me any idea on how long it takes to get
those leases through?
Mr. Skibine. Vicki?
Ms. Forrest. On commercial, what we brought today, and I
can get that information for you, I don't have that with me,
but we do have some numbers on commercial leases. Typically,
those take a little bit longer because of the complexity of the
Senator Tester. Yes. I don't want to have you spend all
your time digging out figures for me, but I think the bottom
line is that there has to be ways to streamline the process to
make it work better, and that is really what you should be
focused on. But I really don't know how you can say, and I am
not doubting your word, but I don't know how you can say things
are getting better if you haven't been able to track backlog,
if you don't know, if you don't know how long these leases have
been laying around.
Ms. Forrest. In our trust accounting and asset management
system, which was fully implemented in 2007, was the first in
the history of the Indian trust that we had all land and
natural resource data in one system. So now we can look across
all the leases in the system.
One of the things that it does not do, but we are
enhancing, is to do exactly what you said, track it in the
process. We would like to be able for a landowner to come in or
use the call center and ask where their lease is at. So that is
one of the enhancements that we are working on to that system.
Senator Tester. Okay. Do you have any way, and you probably
won't, but that is okay, do you have any way to tell me if
there are certain applications that go in, and I know you
talked about the ones where there was no change in land use.
But for example, if I had an application in for drilling some
oil on trust land, versus an application that comes in to build
a casino, does one traditionally take longer than the other?
Ms. Forrest. The gaming applications George would have to
address, but for the oil and gas leases, that was something
that we have the environmental compliance that George was
talking about, the appraisals that we were talking about, and
then negotiation. Typically, we have third parties that
negotiate those on behalf of the landowners. So it is a complex
What I am working on is to try to streamline the process
for our staff.
Senator Tester. Stop. If the land is in trust, who is the
Ms. Forrest. The allotted--the tribe or the----
Mr. Skibine. If the land is in trust, the United States has
the legal title for the benefit of the tribe.
Senator Tester. Right. So who do you negotiate with? You
say you are negotiating on behalf of the landowner. Who are you
negotiating with if the Federal Government is basically the
Ms. Forrest. Well, typically, we are going to talk with the
landowner and have the developer there. And so those
negotiations take place in that manner.
Senator Tester. I am still not tracking you. If it is trust
land, who are you negotiating with, because the Federal
Government is the landowner?
Ms. Forrest. But I think we seek to actively have the
landowner or tribe be a participant in that process. So we
would have whichever developer comes in, whether they want to
oil and gas, whether they want to do commercial leasing. But
for one of my high priorities is that the landowner is an
active participant in that effort.
Senator Tester. Okay. I am not tracking. The tribe puts an
application in that says we want to drill for oil. We have
Conoco out there that wants to do the drilling, just for the
sake of discussion. You guys look at this application and then
you negotiate with what landowner, because there is no
landowner. It is the Federal Government.
Ms. Forrest. Well, typically the Bureau is present at the
negotiations with the tribe and the company. It depends on the
kind of lease. It depends on whether the tribe has the
resources to do that on their own and whether they have that
technical expertise in-house. But at the end of the day, the
Bureau will review that lease and approve that lease.
Mr. Skibine. Let me just----
Senator Tester. Go ahead.
Mr. Skibine. It seems to me that the tribe and the
individual or the company that was interested in drilling
negotiate a lease between themselves and then submit the lease
to the Bureau of Indian Affairs and the BIA's role is just to
approve that lease.
Senator Tester. Correct.
Mr. Skibine. That is right.
Senator Tester. Okay.
Mr. Skibine. That is how it works.
Senator Tester. And so you get the lease in hand. The tribe
and the oil company or the driller has already figured out what
they want to do and they are both comfortable or they wouldn't
have checked off on this. Then it seems to me that this would
progress pretty quickly, these kinds of situations. I mean,
sure, there are probably maybe some issues with endangered
species or things like that.
Mr. Skibine. Right.
Senator Tester. But it could proceed pretty quickly. And I
guess what I need, the crux of this question was, do those kind
of leases traditionally take longer or less time than a lease
to build a casino?
Mr. Skibine. I think they probably take less time, from my
experience with approval to take land into trust for casinos.
But to take land in trust for casinos, if they are off
reservation, will take traditionally at least two years, if not
more. So this is going to have to be less.
Senator Tester. The reason I ask on both accounts, but
mainly on the natural resource development point is that the
Chairman has brought up many times where there is a big oil
field underneath one of the reservations in North Dakota, where
when things were booming, there were lights all around, but
none inside the reservation. There has to be a reason for that.
And if that reason is that the application process takes an
excessive amount of time, and I believe in doing things right,
make no mistake about it, but if it is not a priority, it gets
pushed to the back and pretty soon gets to a situation where
the person goes other places to do their drilling in this
Mr. Skibine. Right. There was a problem at Fort Berthold,
and we have addressed that. Part of the problem was a lack of
resources to deal with the number of, with the lease
development, oil development at the time. We have beefed up the
staff there. We are working on that issue.
Senator Tester. Was that the problem before Carl Artman
came on board? Was it a lack of personnel? Were there positions
that were not filled?
Mr. Skibine. No. No, I don't think that was the issue. The
Administration position, before Mr. Artman came on board was
not an objection to leasing natural resources, just to taking
land into trust.
Senator Tester. Okay. I assume there are people within the
BIA that are dedicated to reviewing these leases and getting
them out the door.
Mr. Skibine. Yes, there are.
Senator Tester. How many are there? How many folks are
Ms. Forrest. We have currently 253 realty specialists that
would do that kind of work throughout the Country.
Senator Tester. Are they under contract?
Ms. Forrest. No, they are Federal employees.
Senator Tester. They are full-time?
Ms. Forrest. Yes.
Senator Tester. What were these folks doing when the
backlog was being accrued, going off of Senator Franken's
Ms. Forrest. For land into trust?
Senator Tester. Yes. You said the backlog got greater
before Carl Artman came on board. So what were these 250 folks
Ms. Forrest. I think one of the issues was what Mr. Skibine
raised in terms of it was not a priority for the staff. And
then currently, BIA has no staff dedicated to the land into
trust process. So with one realty specialist, they are working
on leases. They are working on land in trust process and a
myriad of other acquisition and disposal type activities.
Mr. Skibine. So I guess what she is saying is that an
employee is working on land into trust. Taking land into trust
is only one of the functions that an employee is doing, which
means is that that was not their priority, but there are
certainly other issues that these employees do.
Senator Tester. So they are working on land into trust now?
Mr. Skibine. Yes.
Senator Tester. So what is being given up, because they
must have been working on something else?
Mr. Skibine. No. Nothing is given up.
Senator Tester. Nothing is given up?
Before 2006, before Carl Artman, I should say, you had 250
people out there that were doing something, you just said, and
they had other jobs. Now, they have made this a priority and
they are doing this. What were they doing before, because that
job isn't being done now?
Or were they laying around not doing a heck of a lot
because it wasn't a priority of the Administration? Nobody was
putting any pressure on them up above to move these
Ms. Forrest. Well, Senator Tester, our realty specialists
have a lot of different hats that they wear. So in terms of
whether it is a commercial lease, a residential lease, home
site leases, they are working on all of those things. The land
into trust process was not something that they solely worked
So I know from my visits out to the field, and I certainly
understand your question, but BIA staff was working very hard.
Senator Tester. I am not questioning that. What I am saying
is if they were busy before and this wasn't getting done, and
this is a priority now, and now this is getting done, what are
we going to have a hearing on next year that isn't being done
that they were doing before?
Ms. Forrest. Absolutely.
Mr. Skibine. Well, our goal, of course is not to have a
Senator Tester. No, no. I am with you.
Senator Tester. Especially with Chairman Udall in charge
Ms. Forrest. One of the things that I will advocate for is
in our probate process. In 2005, we identified this large
backlog in probates, so some steps were taken to increase
staff, increase training, have performance standards available
for that. And finally after five years of a huge audit comment
from our independent auditors, that comment was taken off this
Senator Tester. Okay.
Ms. Forrest. So I will propose a similar framework for our
Senator Tester. All right. Well, thank you for your time
here. I think the issue of reducing the backlog is a big issue
and I think that it is being addresed. I think truthfully it is
no reflection on you guys, but there are a lot of uanswered
Thank you very much. Thank you, Mr. Chairman.
Senator Udall. Thank you, Senator Tester.
Mr. Skibine, in your testimony, you state that the Carcieri
decision has disrupted the process for acquiring land in trust
for recognized tribes by imposing new and undefined
requirements on applications now pending before the Secretary.
What plans does the Department have for addressing the Carcieri
Mr. Skibine. First, we would support a Carcieri fix to
essentially eliminate the issue.
Senator Udall. And you are referring to a legislative fix?
Mr. Skibine. Yes.
Senator Udall. And I believe the Chairman has a piece of
legislation that is pending.
Mr. Skibine. Yes.
Senator Udall. Is the Department aware of that?
Mr. Skibine. Yes.
Senator Udall. And supportive of it?
Mr. Skibine. Yes.
Senator Udall. Yes. Okay. But go ahead until we get that
Mr. Skibine. Yes. Right now, we are proceeding with taking
land into trust, we are continuing the process. But for tribes,
you know, for most tribes, the vast majority of tribes, it is
not an issue. For those tribes where essentially there is a
question as to whether they were under Federal jurisdiction in
1934, then the Bureau Director, Regional Director, essentially
asks the Solicitor's Office for an opinion on whether to
proceed with taking the land into trust. That is what we are
doing right now.
Potentially, we are looking for the legislation, and we
hope that we are, so we are, at this point we don't have,
except for doing it on a case by case basis, we are not looking
at anything at this point.
Senator Udall. Okay. But so you are having the Solicitor's
Department give a review as to whether or not you need to do
these additional things?
Mr. Skibine. Right.
Senator Udall. Yes. Okay.
Senator Franken, are you interested in asking any
additional questions here?
Senator Franken. No. I am fine.
Senator Udall. Okay, because I am going to move to the next
Let me just before we dispense with this panel, you know,
the Department's written testimony recites some data for
pending land transactions, but it does not detail the
Department's plan for how it will move forward to clear the
backlogs. And I think you have heard from our Committee Members
today, Mr. Skibine, that they want to see the data in such a
way that we can compare from the past and move to the future,
know how long something has been pending, get a real sense of
whether you are eliminating the backlog, making progress on the
backlog, those kinds of things.
And you should know that the Chairman intends to continue
holding hearings on this and getting the kind of data that we
need to proceed and get a sense of your plan. We are going to
submit additional questions. We will also want the Department's
detailed plan for how it will clear the backlog, and we will
ask for that in these additional questions.
So with that, we are going to excuse you and move to the
next panel. We thank you both very much for your testimony
today and look forward to hearing from you in the future.
Mr. Skibine. Thank you, Mr. Chairman.
Ms. Forrest. Thank you.
Senator Udall. Thank you.
And at this point, we will call Mr. Artman up, and also the
Honorable Derek Bailey, Chairman of the Grand Traverse Band of
Ottawa and Chippewa Indians of Michigan.
Mr. Artman, welcome. Good to see you again. Please proceed.
STATEMENT OF CARL J. ARTMAN, PROFESSOR OF PRACTICE, SANDRA DAY
O'CONNOR COLLEGE OF LAW, ARIZONA STATE UNIVERSITY
Mr. Artman. Thank you, Senator Udall. It is a pleasure to
see you as well. Good morning.
And good morning, Senator Franken.
It is a pleasure to be here today to address this issue of
backlogs at the Bureau of Indian Affairs on land-related
matters, and the impact that this has on the ability of the
tribes to govern and engage in economic development.
I ask permission to submit my full comments for the record.
Senator Udall. They will be submitted and in the record and
you can summarize at this point.
Mr. Artman. Thank you.
When I served as Assistant Secretary for Indian Affairs, we
identified the backlogs in the fee to trust applications,
probates and leases as a foundational issue in the problems
that impacted tribes on numerous levels. This backlog
prohibited tribes from fully exercising their sovereignty and
jurisdiction over these lands, inhibited tribal economic
development, and forestalled the vesting of rights for
individual tribal members.
The need to address this issue became immediately apparent
at the first hearing that this Committee held on this issue
during my tenure on October 4, 2007. In preparing for the
hearing, we weren't able to gather consistent data to quantify
the problem for ourselves, for you, or for our tribal
stakeholders. I pledged to you and this Committee at the end of
that hearing that we would resolve these issues and make
substantial forward progress on this issue.
We began the process to reduce the backlog of applications
by looking at potential policy changes through either new or
amended regulations. Compilation and analysis of the data
quickly revealed that the backlog was not a policy problem, but
a management choice. The 151 regulations adequately outlined
the necessary processes to acquire the land into trust. The
Department just did not manage those processes to incentivize
and finalize the trust applications.
Therefore, we changed our approach to the fee to trust
process. First, we quantified and qualified the extent of the
backlog. We knew how many applications we had, where they were
in the process, and in what offices they were located. Second,
we made completion of the fee to trust application a priority
that manifested itself in annual performance goals that
impacted every person involved in the fee to trust process from
top to bottom.
The Department has excellent employees that want to perform
at their best. The BIA does not have employees dedicated only
to fee to trust acquisitions, as Ms. Forrest just pointed out.
This is a responsibility that falls onto the shoulders of a
person that may do many things in a day. If these tasks aren't
prioritized through a meaningful method, all of the tasks will
suffer. The other option is appropriation of funds to hire and
train additional personnel to efficiently manage all of the
issues that are currently handled by only one.
Our third initiative was development of a fee to trust
handbook. At that time, each of the BIA's 11 regions receiving
fee to trust applications managed the process differently. This
national inconsistency bred frustration, imposed geographical
discrimination, and baited litigation. Regional domination of
the process made meaningful data collection and analysis
impossible. Deputy Director Forrest managed with aplomb the
handbook development. It was approved and disseminated to the
regions in May of 2008. It is now used by all the regions and
hopefully it has brought some consistency to the fee to trust
Finally, we addressed unique problems with unique
solutions. For example, applications seeking to take off-
reservation land into trust for non-gaming purposes had a
unique problem. To resolve this matter, we replaced three
people that allowed these applications to linger, sometimes for
over a decade, with one very motivated individual. Within four
months, Kevin Bearquiver, now the Deputy Director for Indian
Services, was able to review and make recommendations on each
of the pending applications.
The Department of the Interior and the BIA improved the
time line for taking land into trust. The real impact will
occur if these improvements are made a fabric of the
organization. The Department and the BIA are sometimes a
necessary and sometimes a helpful partner with tribes in
developing the latter's futures. Tribes, though, must carefully
gauge their reliance on the Federal Government and tribes
should render the strategic determination if they want or need
land taken into trust for economic development.
The purpose of taking land into trust, as set out during
the reorganization era, was to reestablish a land base that had
been allotted in the previous decades. The IRA-based process is
still a very necessary process as tribes struggle to regain
control over a portion of their lands.
In this era of self-determination, tribes have developed
internal expertise and experience to effectively manage their
own lands. Tribal governments are once again managing their
lands in accordance with their culture and their needs, be it a
need for development or a mandate for environmental
The decision to take land into trust by the tribal
government has ramifications that may not have been considered.
Tribes may wish to approach the issue from the perspective of,
should we take this land into trust, instead of, we must take
this land into trust. Real economic development flourishes in
markets that exhibit both flexibility and predictability.
Economic development in Indian Country requires, among
other things, government transparency and accessible and stable
legal and political infrastructure, and a tribal government
that acts quickly in a market rife with competition. It is this
latter point that argues against taking all land into trust.
Perhaps the first question a tribe should ask is whether
taking this land into trust will promote economic development.
The tribal government may determine that the process takes too
long, especially when compared to how fast markets move. In
addition, budget constraints of the Department may make it a
longer process, or perhaps the Department may eliminate tools
that allow for effective and efficient applications to go
through, such as the fee to trust consortiums. The tribal
government may wish to consider that once it is in trust, the
land cannot be collateralized to finance other projects.
Once it is under Federal control, the tribe can no longer
lease or market it as it sees fit. Instead, the Federal
Government must now approve those acts. The government may
weigh the benefits against the fact that the mere process of
taking it into trust is time consuming, expensive, fraught with
litigation threats, waste local political capital, and may
impel the tribe to negotiate prematurely an intergovernmental
agreement with their neighbors.
If the land is taken into trust, the tribe will be able to
clearly exercise its authority over the land. But in many
cases, that authority has already been severely limited by the
Supreme Court over the last few decades.
Once the land is in trust, though, the tribe does know with
some degree of certainty what laws apply on that land. The
tribe knows that State and local taxation, zoning, and
environmental laws are not applicable on those lands, but it is
their laws that will be applicable. And if given the choice
between having the land in trust or not in trust, most tribes
will go with the former.
If this is the case, then the Federal Government should
ensure that it is the best partner in this process by allowing
tribes to be fully competitive participants in their
marketplace. This could be accomplished through passage of
legislation that allows for tribal oversight of its leasing,
such at the HEARTH Act, or through the Department's
clarification of the parameters of 25 USC 177.
In closing, I would like to offer my best wishes to
Assistant Secretary Echo Hawk, his staff and the employees of
the BIA as they continue to struggle with these complex and
This concludes my statement.
[The prepared statement of Mr. Artman follows:]
Prepared Statement of Carl J. Artman, Professor of Practice, Sandra Day
O'Connor College of Law, Arizona State University
Good morning Mr. Chairman and members of the Committee. It is a
pleasure to be here today to address the issue of backlogs at the
Bureau of Indian Affairs on land related matters, and the impact that
this has on the ability of tribes to govern and engage in economic
When I served as Assistant Secretary-Indian Affairs, we identified
the backlogs in fee-to-trust applications, probates, and leases as a
foundational issue in problems that impacted tribes on numerous levels.
This backlog prohibited tribes from fully exercising their sovereignty
and jurisdiction over these lands, inhibited tribal economic
development, and forestalled the vesting of rights for individual
The need to address this issue became immediately apparent at the
first hearing this Committee held on this issue during my tenure, on
October 4, 2007. In preparing for the hearing, we were not able to
gather consistent data to quantify the problem for ourselves, for you,
or our tribal stakeholders. The Department could not identify, with
certainty, the number of pending fee-to-trust applications in the
regions; it could not determine when off-reservation trust applications
first came to the Central Office; and it could not determine the status
of pending leases. I pledged to you, at the end of the hearing, that we
would resolve these issues and make substantial forward progress.
On May 22, 2008, this Committee revisited the issue. At that point
we were able to report significant progress. In the eight months
between hearings, the employees of the Department involved in leasing
and trust acquisition focused their efforts to resolve these identified
issues. In that time:
1) We were in the final phase or completed the process to take
into trust nearly 65,000 acres of land.
2) We completed the transition to the Trust Asset and
Accounting Management System, thereby improving the
Department's access to current data regarding the status of
land holdings and applications.
3) We identified the number and locations of pending commercial
leases in the Department's system.
4) We assigned additional personnel to help reduce the lease
backlog associated with recent oil and gas lease bids.
We began the process to reduce the backlog of applications by
looking at potential policy changes, through either new or amended
regulations. Compilation and analysis of the data quickly revealed that
the backlog was not a policy problem, but a management choice. The
regulations at 25 CFR 151 et seq. adequately outlined the necessary
processes to acquire the land into trust. The Department did not manage
those processes to incentivize and finalize the trust acquisition.
Therefore, we changed our approach the fee-to trust process. First,
we quantified and qualified the extent of the backlog. We were able to
determine that the Department had 1,489 fee-to-trust applications.
Second, we made completion of the fee-to-trust applications a
priority that manifested itself in annual performance goals that
impacted every person involved in the fee-to-trust process, ranging
from the intake specialist at the agency level all the way to the
director of the Bureau of Indian Affairs. The Department has excellent
employees that want to perform at their best. However, they have too
many demands on their time and, often times, little direction on what
to do first. The BIA does not have employees dedicated to only fee-to-
trust acquisitions. This is a responsibility that falls onto the
shoulders of persons that review leases, process lease payments, answer
data calls, and contend with various other issues that fall on their
desk everyday. If these tasks are not prioritized through a meaningful
method, all of the tasks will suffer. The other option is appropriation
of funds to hire and train additional personnel to efficiently manage
all the issues currently managed by one person.
Our third initiative was the development of a Fee-to-Trust
Handbook. At that time, each of the BIA's eleven regions receiving fee-
to-trust applications managed the process differently. Applicants in
one region were required to submit an environmental impact statement,
while an applicant in another region with a similarly situated piece of
land would qualify for a categorical exclusion. In some regions,
applicants would submit reams of information regarding the status of
the land, and merely a summary in others. This national inconsistency
bred frustration, imposed geographical discrimination, and baited
litigation. Regional domination of the process made meaningful data
collection and analysis impossible.
Deputy Director Vicki Forrest managed with aplomb the Handbook
development. It was approved and disseminated to the regions in May
2008. It is now used by all of the regions, and, hopefully, it has
brought some consistency to the fee-to-trust process.
Finally, we addressed unique problems with unique solutions.
Applicants seeking to take off-reservation land into trust for non-
gaming purposes had a unique problem. To resolve this matter, we
replaced the three people that allowed these applications to linger,
sometimes over a decade, with one very motivated person. Kevin
Bearquiver, now the Deputy Director for Indian Services, reviewed each
of the 44 applications over a four month period, made final
determinations on some of them or requested specific information from
the applicant Tribes to allow for final determinations.
By May 2008, we were able to return here and tell you that of the
1,489 applications, 89 were completed, 266 were moving into the final
stages of acquisition, 90 were withdrawn, and 613 pending requests
lacked sufficient information required by the regulations. Of the
remaining 363 land-into-trust applications:
178 pending applications were waiting on local government
comments or tribal responses to questions;
45 were undergoing NEPA analyses;
35 were being surveyed for hazardous materials impacts; and
105 were being reviewed to determine if there are title-
related issues that must be resolved before a land-into-trust
determination can be made.
I wish I could tell you we had similar success with leasing and
appraisals. The best we were able to accomplish in the eight months
between hearings was an accurate quantification of the outstanding
appraisals and leases. We began discussion of a solution for appraisals
that involved the use of blanket appraisals of lands that could be
similarly situated. With regards to leases, we moved people, funds, and
equipment to concentrate on unique issues in specific areas, such as
the processing of oil and gas leases on the Fort Berthold Reservation
and commercial leases for the Agua Caliente tribe in the Palm Springs
The Department of the Interior and its Bureau of Indian Affairs
improved the timeline for taking land-into-trust. The real impact will
occur if these improvements are made a part of the fabric of the
organization. The Department and the BIA are sometimes a necessary and
sometimes a helpful partner with the tribes in developing the latter's
future. Tribes must carefully gauge their reliance on the Federal
Government. And tribes should render the strategic determination if
they want or need land taken into trust for economic development.
The purpose of taking land into trust, set out in the Indian
Reorganization era, was to reestablish the land base that had been
allotted in the previous decades. This land base would create a
foundation for tribal governments to exercise their sovereignty to the
exclusion of others. It would provide tribes the protection of the
Federal Government in the ownership of the land, a protection that
harkened back to pre-colonial times through the initial years of our
government, and in the exercise of their jurisdiction. This IRA based
process is still a very necessary process as tribes struggle to regain
control over a portion of their lands.
In this era of Self-Determination, tribes have developed the
internal expertise and experience to effectively manage their own
lands. Tribal governments run their own land, title, and records
offices. They regulate land use through their own laws that oversee
development and conservation on the reservation. Tribal governments are
once again managing their lands in accordance with their culture and
needs, be it a need for development or a mandate for environmental
The decision to take land into trust by the tribal government has
ramifications that may not have been considered. Tribes may wish to
approach the issue from the perspective of ``should we take this land
into trust,'' instead of ``we must take this land into trust.''
The Federal Government states it wants to promote economic
development in Indian country. It supports this claim with programs
like loan guarantees, the 477 program, training grants, and bonding
authority. It also claims that taking land into trust will further
economic development. This is a concept I promoted when speaking about
this issue. And yes, taking land into trust may help a tribe with an
aspect of its economic development plan. Some of the aforementioned
federal programs may be limited to use for developments on trust land.
The exercise of sovereignty may benefit tribal economic development in
determining the use of the land, the timing of development, and the
extent of sovereign immunity for those entities that operate on those
Real economic development flourishes in markets that exhibit both
flexibility and predictability. Economic development in Indian country
requires, among other things, government transparency, an accessible
and stable legal and political infrastructure, and a tribal government
that acts quickly in a market rife with competition. It is the latter
point that argues against taking all land into trust.
Perhaps, the first question a tribal government should ask is
whether taking this land into trust will promote economic development.
The tribal government may determine that the process takes too long,
especially when compared to how fast the market moves. In addition,
budget constraints on the Department may make it a longer process or
perhaps it will eliminate tools like the fee to trust consortium. The
tribal government may wish to consider that once it is in trust, the
land cannot be collateralized to finance other projects. Once it is
under federal control, the Tribe can no longer lease it or market it as
it sees fit, instead the Federal Government must now approve those
acts. The government may weigh the benefits against the fact that the
mere process of taking it into trust is time consuming, expensive,
fraught with litigation threats, wastes local political capital, and
may compel the tribe to negotiate prematurely intergovernmental
agreements with their neighbors.
If the land is taken into trust, the tribe will be able to clearly
exercise its authority over the land. But in many cases that authority
has been limited over the decades by the Supreme Court. Once the land
is in trust, the tribe knows, with some degree of certainty, what laws
apply on that land. The tribe knows that state and local tax, zoning,
and environmental laws are not applicable on those lands. And if given
the choice between having the land in trust and not in trust, most
tribes will go with the former.
However, this could become less of a Hobson's Choice if the
Department made a clear determination on the applicability of 25 U.S.C.
177 to on-reservation lands. Especially since the Department is not
sure how 25 U.S.C. 177's restraint on alienation applies to fee lands
in reservations, thereby essentially foreclosing the benefits of on-
reservation fee land.
In the last administration, a Solicitor's Opinion from the
Department may be read to imply that Indian tribes' authority to engage
in real estate transactions relating to lands they own in fee simple
absolute title extends only to off-reservation land and that tribe must
seek federal approval for sales, leases, and mortgages of reservation
fees lands. Federal courts that have addressed this issue have rejected
this implied limitation on tribal authority. Tribes routinely engage in
transactions relating to reservation fee lands without federal
approval. BIA has not claimed any approval authority over them nor is
it likely that BIA, already overburdened, wants to assume these new
This opinion has the potential to limit choices in Indian country
and sow doubt among title companies regarding the authority of tribes
to engage in real estate transactions relating to their lands owned in
fee simple title. This could inhibit economic development, create
further unacceptable delays in closing business transactions and tribal
home loans, and force tribes, alone among owners of fee land, to incur
costs of obtaining acts of Congress in order to engage in routine real
Tribal sovereignty would suffer as tribal governments' decisions
become subject to second-guessing by federal bureaucrats. In view of
the circumstances that the Federal Government most likely does not want
to assume additional trust burdens, the potential oversight impinges on
a forty-year old federal policy of encouraging tribal self-
determination, and that this may limit tribal options, the Interior
Department should issue an additional opinion that Section 177 does not
apply to lands owned by tribes in fee simple absolute and that tribes
require the approval of neither the Interior Department nor the
Congress to use these lands as the tribes see fit.
I offer my best wishes Assistant Secretary Echo Hawk, his staff,
and employees of the BIA as they continue to struggle with these
complex and emotional issues.
This concludes my statement.
Senator Udall. Thank you, Mr. Artman.
And please, Chairman Bailey, please go ahead.
STATEMENT OF HON. DEREK BAILEY, CHAIRMAN, GRAND TRAVERSE BAND
OF OTTAWA AND CHIPPEWA INDIANS
Mr. Bailey. Good morning. First, I would like to recognize
Chairman Dorgan for holding this hearing, and also Chairman
Udall and Senator Franken for your attendance here, and also
honorable Members of the Committee.
I very much appreciate the invitation to appear before the
Committee today. My tribe, the Grand Traverse Band of Ottawa
and Chippewa Indians, is located on the shores of Grand
Traverse Bay in the northwest lower peninsula of Michigan. It
consists of approximately 4,000 members who descend primarily
from the Odawa and Ojibwa and Anishinaabek.
The United States and the Grand Traverse Band entered into
a series of treaties in the 19th century. However, as the
Federal courts have found in 1872, the Secretary of Interior
illegally terminated Federal recognition of our tribe. The
United States washed its hands of us and we had to fight for
over a century to regain Federal recognition.
During that time period, we endured great hardships,
including loss of almost our entire land base. When we were
restored to Federal recognition in 1980, we had only a tiny
150-acre State reservation set aside for our use. The placement
of land into trust for the Grand Traverse Band has hence played
a critical role in the revitalization of our governmental,
social and economic institutions and, indeed, in our very
ability to function as a tribe.
Since 1980, the Secretary has taken 43 parcels of land into
trust for us, totaling approximately 1,000 acres. All of these
trust acquisitions have fallen within the Band's historic
territory surrounding Grand Traverse Bay.
We have utilized these trust acquisitions for four critical
governmental purposes: First, in order to provide core
governmental services such as tribal government offices, a
health clinic, a tribal court, law enforcement and natural
resources management; second, for critically needed housing for
our members; third, for economic development and
diversification; and fourth, for treaty rights-related
While the restoration of a small portion of our territory
through the land into trust process has been essential to the
revitalization of our tribe, we cannot function in a fully
effective manner as a government without additional lands.
Unfortunately, however, the land into trust process has
become tortuously slow and complicated. As is the case with so
many other tribes, we have been stymied by the failure of the
Department to act on trust applications for years, even when
those applications are not objected to by the State or local
units of government, and even when they involve lands that will
allow us to provide critical services to our community.
By way of example, in November of 2007, the Department
returned to us as being too old four trust applications that we
filed between 1992 and 1994. All four of those applications
involve land parcels that fall within the heart of our historic
territory and that are contiguous to our existing trust
properties. One of the parcels would be used for critically
needed housing for members. The second already contains tribal
member housing, but because the land is not in trust,
complicated jurisdictional problems arise that thwart our
ability to effectively govern the area. The third would be used
to provide safe access to Lake Michigan where many of our
members exercise their treaty fishing rights. And the fourth
would be maintained in its current forest condition in order to
allow our members to exercise their treaty gathering and
hunting rights. None of the applications is gaming-related.
Even though the State and local units of government do not
object to these applications, they languished at the Department
for well over a decade. No amount of effort on our part was
able to move the applications along. Then, in 2007, the
applications were returned to us as too old, even though it was
the Department that was responsible for their long pendency.
In addition to the four returned applications, we presently
have eight trust acquisition requests pending with the
Department. Once again, several of these applications have been
pending for over 15 years. Although the proposed acquisitions
fall within the Grand Traverse Band's historic territory,
almost all are contiguous to existing trust lands, none are
gaming-related, and none are objected to by the State of
Michigan or any local unit of government. The Band intends to
use the parcels for housing, the provision of governmental
services, the exercise of treaty hunting and fishing rights,
and economic development and diversification.
As one example, parcel 45 in Antrim County is a 78-acre
parcel that is zoned for residential development by the local
township and county. In order to attain the zoning, our tribe
spent $1.5 million for roads and for sewer, water and
electrical infrastructure to render the parcels ready for
individual housing. The parcel contains two homes owned by
tribal members, two Grand Traverse Band rental homes, and 22
empty lots available for tribal members to construct housing.
However, until the land is placed into trust, tribal members
cannot obtain the leases necessary to secure housing financing.
Our trust application for this parcel was filed in 2001 and
we have applications pending that are considerably older than
that. Although the Department is now apparently deferring
action on any of our applications until it sorts through the
implications of the Carcieri decision, or until corrective
legislation is passed by Congress, they should have acted on
these parcels years ago and certainly long prior to the time
that the Carcieri decision introduced additional complexities
into the process.
I hope that my testimony underscores the need for
significant reforms to the present land into trust process. The
Grand Traverse Band tribal government is working as hard as
possible to improve the lives of our citizens and to further
revitalize our governmental, social and economic institutions
that commenced with our restoration to Federal recognition.
The terrible delays that presently plague the land into
trust process are a major impediment to our efforts and to
similar efforts by tribal governments around the Country. We
have included several recommendations for action in the written
testimony that we have filed with the Committee, and I want to
say thank you, [greeting in native tongue] again for the
opportunity to appear before you today.
[The prepared statement of Mr. Bailey follows:]
Prepared Statement of Hon. Derek Bailey, Chairman, Grand Traverse Band
of Ottawa and Chippewa Indians
Senator Udall. Thank you, Chairman Bailey.
Chairman Bailey, you mention in your testimony that early
trust applications were typically processed within a year or
two of submission, but that now you have applications that have
been pending for 15 years. And you also mentioned some
intermittent activity. In your opinion, what is the reason that
trust applications used to be processed in a timely manner
compared to now, when you have applications pending for several
years or decades?
Mr. Bailey. To answer that question, I will give some
history. In 2008, we had approximately 200 acres of land that
was spread over a number of parcels taken into trust for us.
But in that illustrates also the problems with the current land
into trust process. Those applications in question were pending
from, again, anywhere from eight to 14 years.
Still, the Minneapolis Regional Office, which we deal with
as a self-governance tribe, showed no signs of acting on the
applications. It took the former Chair, and that's why I wanted
a historical part to my answer, being just a year now seated as
Chair, there is historical content that I am not as strong on.
But it took the Chair and other leaders repeated visits to the
office, to the central office here in Washington urging action
be taken on the pending applications, but nothing happened.
Now, we succeeded ultimately because of the relationship,
the superintendent realty officer at the Michigan agency
expressed a willingness to assist us, and because the Regional
Director authorized them to do so.
All this required a tremendous amount of resources,
expenditure of resources and time on our part. But this one
time success, did nothing to fix the long-term problems that we
see with a regional office that failed to satisfactorily
discharge its land into trust responsibilities.
Senator Udall. I think you also mention in your testimony
that the Carcieri opinion has impacted some of your
applications. Do you support a fix to that? Or what are you
recommending be done there?
Mr. Bailey. Chairman Udall, I appreciate the question for
our response. The Grand Traverse Band strongly, you know, we
believe firmly that under Federal jurisdiction 1934. Hence we
remain entitled to the benefits of the Indian Reorganization
Act under the terms of the Carcieri decision, but it is not
clear to us how the Interior Department is going to apply the
decision. However it acts, we do feel significant litigation
will follow. But the Grand Traverse Band does support, I think
you termed it earlier, the response was a legislative fix.
Senator Udall. Yes. Thank you, Chairman Bailey.
Mr. Artman, one of your initiatives, and I think you talked
about it in your testimony, was creating a fee to trust
handbook, and that brought consistency. I think you testified
to that process. Do you think a similar handbook would be
helpful for processing of appraisals, leases or other land
Mr. Artman. I think certainly for leases it would be
helpful, especially since there are many different kinds of
leases out there, to the degree that they need to come back to
the Department of the Interior.
One of the bills pending currently before Congress, I
believe it is called the HEARTH bill, which would allow for a
Navajo-type leasing process that tribes could take on
themselves. That might be the best fix to it.
Short of that, a leasing handbook or policies or processes,
internal guidelines that explain how best to bring leases in
would be good for processing the leases as well.
But you also have a human resources issue there as well
that needs to be addressed that no handbook or efficiency in
the processes will be able to overcome. And again, it does
become a matter of priorities and funding because people and
technology can only do so much.
Senator Udall. Listening to Chairman Bailey and the
problems he has had, and then your experience there at
Interior, what would you recommend be the first couple of
actions taken by the new Assistant Secretary to get through
Mr. Artman. I think the Department of the Interior has,
some of its best resources are its people, the people that are
on the ground in the regions at the Agency levels, they
understand where the land is situated, the needs that the
tribes have, and empowering those individuals to do their very
best. And that can be done through prioritizing, which this
Administration is certainly doing, putting those priorities
into performance standards that put mandates on the individuals
to pass their annual performance exams, performance standards,
to meet certain goals and objectives. That seemed to work very
well for us because it did shift the priority over.
Along with that, you have to manage, for better or worse,
the fact that there will be something lost in that process
unless there are more people brought on board or more
technology installed into the process to pick up the focus that
is placed elsewhere.
Senator Udall. Thank you, Mr. Artman.
Senator Franken. Thank you, Mr. Chairman.
Mr. Artman, I was struck by the part of your testimony when
you talked about Kevin Bearquiver. And basically, what you
describe is that he accomplished himself in four months what
three employees had failed to accomplish in a decade. Is this
something to learn from, how did he do what he did? And what
can we learn from it? And what can others learn from it?
Mr. Artman. I think Mr. Bearquiver is a good example of
some of the motivation, intelligence and capabilities that
exist within the Department of the Interior. And having worked
with him before in the Department on other matters and heard
from others, his supervisors, on what an excellent individual
he was, and he understood the issue, very importantly.
The frustration that I had with that office that was
reviewing those was unbelievable. In preparing for that very
first hearing in October, 2007, we were going over leases, land
into trust on-reservation, land into trust off-reservation,
where the applications were. One of the individuals said to me
that they were looking for a particular application that
allegedly came in years before, and we couldn't find it. And
then she went to her desk and she found it after she dug
through the bottom of the pile. It was in a FedEx envelope that
was sent in years earlier.
Now, you think if someone's going to go through the trouble
of sending in next-day delivery through Federal Express that
they are actually going to receive it. They are going to open
it up at least within a day or two, and at least begin to
process it. Because someone is saying to them, this is
important to us, that we have a record that it was delivered to
you and delivered to you quickly.
When I heard this, I was dumbfounded and realized that we
had to make a change in that area. It was an experiment to be
able to put one person in there, but it worked well.
Senator Franken. Don't you think someone sending a FedEx
package would call the next day and say, did you get it?
Mr. Artman. They did. That is the thing, because they did.
Senator Franken. Okay.
Mr. Artman. They did. They had lobbyists. They had lawyers.
The tribal leaders called themselves, and still this was coming
to a dead end.
But that office certainly doesn't represent the BIA. That
is the worst example that you could probably find out there.
You might be able to find a few others, but that is one of the
worst examples that you could find out there.
I think what the motivation that Mr. Bearquiver showed when
he was put into that position, and when he went through those
applications one by one, calling up the tribes saying, where it
this? What does this mean here? How can we change this? He was
working with them. That shows the motivation that is probably
more prevalent in the Department of the Interior at both the
central office, the regional offices and the Agency level than
the other way around. So it is a matter of tapping into that
and pulling that out.
Senator Franken. That just worries me, someone having a
Mr. Artman. It is not there anymore.
Senator Franken. I mean, I have piles, but I have a
different kind of job. I don't process these things.
Senator Udall. You also have a staff.
Senator Franken. Exactly.
Senator Udall. Get them to tackle that pile.
Senator Franken. Yes. I mean, I have piles at home.
Senator Franken. Is what I was saying.
How does the BIA--this is for either of you--make the
rulings? On what basis?
Mr. Bailey. Chairman Udall, if I could just confer. I have
the General Counsel from the Grand Traverse Band here.
Senator Udall. Please, please.
Mr. Bailey. I am sorry to defer, but I wouldn't mind a
moment while he is responding.
Mr. Artman. Sure. How does the BIA make the decisions? You
know, as Mr. Skibine alluded to earlier, the 151 regulations
are relatively simple. They take up all of two columns in the
regulation. If you go off-reservation, you are looking at an
additional four or five paragraphs there.
The Department of the Interior receives a lot of
applications. The question was asked earlier, how many were
received in the last year--and this by way of example of how
many applications received. In the last hearing that I did on
this in May, 2008, I believe that there were 1,400 applications
pending, so that would, say, approximately 500 new applications
were received. If that is the case, you have the process where
it comes into the TAAMS (Trust Asset and Accounting Management
System) and then it is marched through that process.
But one of the things that we did and I think one of the
things that this Administration is doing as well is not just
taking a look at these as objective applications, but as they
get further into the process, determining which ones can
actually be done more quickly, which ones need to be done more
quickly, is there a commercial purpose, a housing purpose, is
this something that will necessarily take a long time because
of the lack of information, because of a lien that may be on
it, or if there is a NEPA problem, if there is an environmental
Senator Franken. So you are prioritizing them--you are kind
of doing a triage.
Mr. Artman. Yes. One of the things that we did, for
example, was when we finally were able to quantify and qualify
what kind of applications that we had, we determined that there
were 215 applications that we could deal with now. We had all
of the information that was necessary. It was all timely. There
were not problems. And of those 215 applications, I think
within seven or eight months we were able to get through about
60 percent of those, a little bit under.
So that is the kind of triage that we were doing. I think
that they are still doing it now as well.
Senator Franken. Mr. Chairman, did you have----
Mr. Bailey. Yes, Senator Franken, I think it would be
beneficial to have a tribal perspective responding.
Senator Franken. Right.
Mr. Bailey. I do want to make note that we believe that
there are many fine people that are working on the land into
trust issues at the Interior Department. The people at the
Michigan Agency are excellent. Our field solicitor in
Minneapolis has been very helpful. There are many highly
skilled individuals acting in good faith in the central office
as well, including Mr. Skibine, and we listened to the
testimony earlier as far as the direction that was being handed
down, as they are guided from the top down. And so there is
some worry, some components to that historically, as I sit here
as a current leader today, understanding the history that leads
to the oversight hearing today.
But somewhere within the Department, the process and the
trust applications, there is a breakdown. And looking from the
outside in, I don't know why. I could say we, as a tribe, don't
know why or where that happens. But I will make the statement
that this is why we believe it is very important that the
Department establish and adhere to fixed guidelines regarding
the processing of trust applications.
Senator Franken. Okay. So basically, you deal with very
good people, but that said, somewhere in there, the stuff gets
Mr. Bailey. Senator, thank you. Again, highlighting the
individuals that we are working with----
Senator Franken. Right.
Mr. Bailey.--I know that. And correct me if I am wrong, Mr.
Artman, but since 1980, I believe there has been about 30,
approximately 30 memorandums or guidelines from the Department.
And it has been complicated, or they have been--the correct
word is when--I am trying to search for a word. I am sorry,
sir. But when they conflict and there is no adherence or
Senator Franken. You are getting conflicting memos.
Mr. Bailey. That is exactly--yes, conflicting.
Senator Franken. Yes. I know what that is like.
Okay. So from the tribe's perspective, you are dealing with
very good people, but somewhere in there it is just not getting
Mr. Bailey. And I just have to quote my testimony, and also
the written testimony. You know, 15 years, and, you know, still
waiting, then having them come back and saying they are too
old. You know, tribes, we did our part. Our leaders took the
initiative, put forth the energy, the resources, commitment to
that. And then to have it fall short, and then from outside the
tribal responsibility in this matter, to have it said it is too
old and have them returned.
Senator Franken. Now, Mr. Artman----
Mr. Bailey. Those parcels are--I am sorry.
Senator Franken. No, no. I was just going to say, Mr.
Artman, Mr. Skibine talked about you glowingly and that there
was sort of a change when you showed up. Okay?
Mr. Bailey. Yes.
Senator Franken. So you clearly are a proactive person. And
so a proactive person who came into an organization where there
was some stasis, shall we say, regarding this. And again, I
talked about Mr. Bearquiver.
What is the answer here? I mean, you see Chairman Bailey
talking about good people he is talking to, but then it just
kind of goes into some kind of cloud or something. What is
Mr. Artman. Well, I hope between having consistency across
the Nation through the fee to trust handbook, and I hope by
starting off the concept of putting the fee to trust or leases
into the performance standards, and training the individuals.
Right now, each person is worked into the budget for the salary
of the individual. There is training money that is set aside,
essentially, in that number that you see for the personnel.
It is important that the Department and the individuals
take advantage of that. Constant reeducation and keeping the
mind sharp on these issues is critical. And that is what you
see in people like Mr. Bearquiver and many of the people
throughout the central office and the regions. They exemplify
the best in what I think is probably the overwhelming majority,
of the thought, the hope and the intentions of the people to do
I think, you know, this has to be from the top down, and
certainly Mr. Skibine said it, that this is a priority for this
Administration. This was a priority when I was at the
Department. And if this is going to be the same kind of thought
that continues on from Administration to Administration,
Assistant Secretary to Assistant Secretary, then we are going
to start to establish something.
And I would hope that in two or three years, once this
becomes part of the fabric, part of the culture, that Chairman
Bailey, or his successors or something, if the next election
not work out, can come back here and say we have had
improvements, that we have seen our land go into trust, and
that working with the government has now become a good
And I think in the work that we did, we started to see that
from tribes saying, yes, this is finally working for us.
Senator Franken. I hope you are right. I hope that happens.
And thank you, both gentlemen, for your testimony.
Thank you, Mr. Chairman.
Senator Udall. Thank you, Senator Franken, and thank you
for your important participation today and for staying through
both panels. I appreciate it very much.
We know from the hearing today, from both panels, that
these are very important issues to tribes.
You know, Chairman Bailey, you really highlighted it,
talking about the issues that concern your tribe in terms of
the applications, and you really brought that home. So we know
we want this process to move forward.
And in that respect, Mr. Skibine and Ms. Forrest, we really
appreciate you staying over and listening, and hope that maybe
some ideas were generated here, and something that will be
We appreciate, Mr. Artman, you and Chairman Bailey for
being here today and testifying and helping us out with this
very important issue.
The hearing record will remain open for two weeks from
This hearing is adjourned.
[Whereupon, at 11:25 a.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Delores Pigsley, Chairman, Confederated
Tribes of Siletz Indians of Oregon
Prepared Statement of Hon. Elaine Fink, Chairperson, North Fork
Rancheria of Mono Indians of California
On October 3, 2007, Madera County Board of Supervisor Frank Bigelow
came before this Committee to urge the Department of the Interior to
end months of delay and publish the draft environmental impact
statement (``EIS'') for the North Fork Rancheria on Mono Indians'
(``North Fork'' or ``Tribe'') fee-to-trust and casino/hotel project. As
Madera City Council member Gary Svanda testified in the follow-up
hearing on May 22, 2008, the draft EIS was finally published on
February 15, 2008, about a year after it had been completed.
Now almost two years later, the Department is once again holding up
the environmental review process for our project, this time by not
publishing the final EIS that was completed approximately four months
ago. While we understand that the Department is again reviewing its
off-reservation gaming policy, that review should not delay publication
of our final EIS. The final EIS must be published before the Secretary
of the Interior can make a decision on our application; it is not the
decision itself. Publication of the final EIS is not a decision on the
merits and is not dependent upon any policy other than the requirements
of the National Environmental Policy Act (NEPA).
Our project complies with existing law and the commutability
standard established in January 2008 under the prior Administration.
The proposed site, identified in cooperation with local
representatives, is less than 40 miles from the North Fork Rancheria.
The rancheria itself is not a viable commercial site as it is located
on a steep hillside in the Sierra foothills and is held in trust for a
few individual residents and not for the Tribe. Although the proposed
site may be eligible for gaming as restored lands, we are proceeding
through the more difficult and transparent Secretarial two-part process
of Section 20 of the Indian Gaming Regulatory Act.
It is hard to understand the delay, especially in light of current
economic conditions. Our project would create over 4,000 jobs in an
area with among the highest unemployment rates in the Nation. It would
also generate millions of dollars in revenue for state and local
government under our Tribe's compact with the Governor of California
and binding agreements with the County of Madera, the City of Madera,
and the Madera Irrigation District. Further, the project would generate
additional revenues for tribal programs and services for our 1,800
tribal citizens and, under our compact, for the more than 600 tribal
members of the Wiyot Tribe in Northern California coast.
The delay makes no sense in terms of law or policy, and is very
costly to our Tribe, which is the largest restored tribe in California.
Interest continues to accrue on the significant development expenses we
have incurred since early 2004, including purchasing the land and
paying for the environmental review. The local community has been
incredibly supportive of our project and vision for the region, but
they and our own tribal citizens are growing increasingly frustrated by
the delay. Each day of delay costs the community approximately $275,000
in economic activity and denies jobs and opportunity to our tribal
citizens and local residents.
We understand that our project is not the only one being delay. The
Department has not taken any action on any off-reservation project for
months. Although we had high hopes that we would not face unnecessary
bureaucratic delays in the new Administration, there is, in effect, a
moratorium on taking lands into trust for gaming purposes. It is our
hope that this Committee can help bring to light the nature and extent
of the current delay as it is grossly unfair to our Tribe and contrary
to existing law and policy.
Thank you for the opportunity to comment.
Prepared Statement of Glenda Nelson, Chairperson, Estom Yumeka Maidu of
the Enterprise Rancheria of California
Since 2002, the Estom Yumeka Maidu of the Enterprise Rancheria
(``Tribe'') has been pursuing the long and difficult process to have 40
acres of land taken into trust for a resort casino and hotel. The
proposed site is located in a rural, voter-approved Sports and
Entertainment Zone in Yuba County in the Central Valley. It would
replace the 40 acres we lost when Congress authorized the sale of one
of our two 40-acre rancherias to the State of California to become part
of Lake Oroville as part of a large water project. The site is located
approximately 35 miles from our remaining rancheria, which is located
in a remote area of the foothills over an ancient Maidu village.
Despite having identified a flat hayfield that the voters had
already approved for development, the federal environmental review
process for the site has now taken almost eight years. After preparing
an environmental assessment, we agreed to pay for the preparation of an
environmental impact statement (``EIS'') after the Department changed
its policy. We were then delayed while the prior Administration
developed its Guidance Memo of January 3, 2008. After our project was
deemed to be within a commutable distance of our ``reservation'', the
draft EIS for our project was published on March 21, 2008.
Since at least June 2009, the final EIS for our project has been
ready for publication. Yet despite representations to the contrary, the
final EIS remains unpublished. While we understand that the Department
is again reviewing its off-reservation gaming policy, that review
should not delay publication of our final EIS. Publication of the final
EIS is not a decision on the merits and is not dependent upon any
policy other than the requirements of National Environmental Policy Act
Our project would create over 4,000 jobs in an area with among the
highest unemployment rates in the Nation. It would also generate
millions of dollars in revenue in economic development and provide
additional revenues to the County of Yuba and City of Marysville under
our binding agreements with both jurisdictions. Importantly, the
project would generate new revenues for tribal programs and services
that would benefit our nearly 800 tribal members.
Our project complies with existing law and the commutability
standard established in January 2008 under the prior administration. We
are seeking to qualify the land for gaming under the difficult and
transparent Secretarial two-part process of Section 20 of the Indian
Gaming Regulatory Act. Ironically, neighboring tribes that were
terminated, including some who oppose our project for competitive
reasons, have not had to navigate this difficult process and
consequently their members have for years benefitted from Indian
gaming. We are glad for their success, but are anxious to advance the
interests of our members through economic development and help end the
generations of poverty and despair through which many have suffered.
We understand that our project is not the only one being delay. The
Department has not taken any action on any off-reservation project for
months. Although we had high hopes that we would not face unnecessary
bureaucratic delays in the new Administration, there is, in effect, a
moratorium on taking lands into trust for gaming purposes. It is our
hope that this Committee can help bring to light the nature and extent
of the current delay as it is grossly unfair to our Tribe and contrary
to existing law and policy.
Thank you for the opportunity to comment.
Prepared Statement of the Intertribal Monitoring Association on Indian
Trust Funds (ITMA)
The Intertribal Monitoring Association on Indian Trust Funds (ITMA)
is a representative organization of the following 65 federally
recognized tribes: Absentee Shawnee Tribe, Alabama Quassarte Tribe,
Blackfeet Tribe, Central Council of Tlingit & Haida Indian Tribes of
Alaska, Chehalis Tribe, Cherokee Nation of Oklahoma, Cheyenne River
Sioux Tribe, Chippewa Cree Tribe of Rocky Boy Reservation, Coeur
D'Alene Tribe, Confederated Salish & Kootenai Tribes, Confederated
Tribes of Colville, Confederated Tribes of Warm Springs, Confederated
Tribes of Umatilla, Confederated Tribes of Yakama Nation, Crow Tribe,
Eastern Shoshone Tribe, Ewiiaapaayp Band of Kumeyaay Indians, Fallon
Paiute-Shoshone Tribe, Forest County Potawatomi Tribe, Fort Belknap
Tribes, Fort Bidwell Indian Community, Fort Peck Tribes, Grand Portage
Tribe, Hoopa Valley Tribe, Hopi Nation, Iowa Tribe, Jicarilla Apache
Nation, Kaw Nation, Kiowa Tribe, Kenaitze Indian Tribe, Lac Vieux
Desert Tribe, Leech Lake Band, Mescalero Apache Tribe, Metlakatla
Tribe, Muscogee Creek Nation, Nez Perce Tribe, Northern Arapaho Tribe,
Northern Cheyenne Tribe, Ojibwe Indian Tribe, Oneida Nation of
Wisconsin, Osage Tribe, Passamaquoddy-Pleasant Point Tribe, Penobscot
Nation, Pueblo of Cochiti, Pueblo of Laguna, Pueblo of Picuris, Pueblo
of Sandia, Quapaw Tribe, Quinault Indian Tribe, Red Lake Band of
Chippewa Indians, Sac and Fox Tribe, Salt River Pima-Maricopa Indian
Tribe, San Pasqual Band of Mission Indians, Sault Ste. Marie Tribe of
Chippewa Indians, Shoshone-Bannock Tribes, Sisseton-Wahpeton Oyate
Tribe, Soboba Band of Luiseno Indians, Southern Ute Tribe, Thlopthlocco
Tribal Town, Three Affiliated Tribes of Fort Berthold, Tohono O'odham
Nation, Turtle Mountain Band of Chippewa, Walker River Paiute Tribe,
Winnebago Tribe of Wisconsin, and the Yurok Tribe.
Mr. Chairman and members of the Committee, ITMA is pleased to
present our views regarding backlogs at the Department of the Interior.
My name is Michael Finley and I am the Chairman of the Colville
Business Council, the governing body of the Confederated Tribes of
Colville Reservation located in Washington state. I also serve as
Chairman of the Intertribal Monitoring Association on Indian Trust
Funds, and I offer this testimony on behalf of ITMA.
Established in 1990, ITMA is a national Tribal consortium, the
membership of which consists of 66 federally recognized Indian Tribes.
ITMA's mission includes monitoring the United States' trust reform
efforts and providing a forum for Tribal consultation on trust issues.
Consistent with its mission, ITMA conducts continuous outreach
activities to inform Tribes and individual beneficiaries of the status
of trust reform efforts within the Department of the Interior and
reform efforts undertaken in Congress.
ITMA has undertaken a number of projects over the years in
furtherance of its mission. For example, pursuant to a Cooperative
Agreement with the Department, ITMA participated in a joint effort with
the Office of Historical Trust Accounting to develop a methodology that
could be used, among other things, to assist the United States and
participating Indian tribes to reach agreement on the balances of the
tribes' trust accounts. This project, called the ``Tribal Trust Fund
Settlement Project,'' resulted in the development of a methodology
available to Indian tribes for use in pending trust fund related
lawsuits. That methodology was completed in July 2008 and is currently
being used by Indian tribes and the United States as a tool to resolve
tribal trust claims.
During the past six years, ITMA has conducted 18 Listening Sessions
throughout Indian Country to obtain input from Indian tribes and
individual Indians regarding the Department's administration of Indian
trust funds and trust land. At these Listening Sessions, tribal leaders
and Indian beneficiaries often mention delays that they experience in
getting land taken into trust and other transactions involving Indian
One of the areas that has received significant attention at ITMA's
Listening Sessions of late has been appraisals. The Department of the
Interior requires a formal appraisal for nearly all transactions
involving Indian trust land. Indian tribes and individuals have noted
delays in obtaining appraisals of trust lands, an inability to
determine why appraisals are delayed, and the fact that the costs of
appraisals are borne by Indian landowners. With the continued focus on
economic development on Indian lands, when and under what circumstances
appraisals are required and the ability of Indian beneficiaries to
obtain them in a timely manner has become a subject of increasing
interest. Although the BIA and the Office of the Special Trustee have
significantly reduced the backlog of appraisal requests in calendar
year 2009, Indian beneficiaries have expressed a desire to have the
appraisal process streamlined on a going-forward basis.
With this in mind, ITMA has submitted a proposal to the Department
to facilitate a small work group to develop policy, regulatory and
legislative options to promote Indian trust land consolidation and
reduce fractionated land ownership. Part of this proposal will examine
the current process for obtaining appraisals. The work group will meet
over a six-month period and will identify and review existing policies
and regulations that may inhibit trust land consolidation and, where
appropriate, suggest revisions of these policies, including appraisal
policies. The workgroup will also develop additional regulatory and
legislative proposals to streamline and facilitate land consolidation,
with the intent of presenting a package of suggestions to the
Department for consultation with Indian Country.
This proposal has been well-received by the Department and ITMA
expects to begin this project in early 2010. ITMA is hopeful and
optimistic that such an in-depth review of these regulatory policies
will result in recommendations that can be implemented quickly and that
will alleviate many of the delays that Indian beneficiaries experience
when trying to complete transactions involving Indian trust land. ITMA
stands ready to serve as a resource for the Committee as it explores
these and other issues in connection with today's hearing, and we
appreciate the opportunity to provide this statement for the record.
Prepared Statement of Hon. Matthew J. Box, Chairman, Southern Ute
Indian Tribal Council
Prepared Statement of Hon. Michael Finley, Chairman, Confederated
Tribes of the Colville Reservation
Good afternoon Chairman Dorgan, Vice Chairman Barrasso, and members
of the Committee. My name is Michael Finley and I am the Chairman of
the Colville Business Council, the governing body of the Confederated
Tribes of the Colville Reservation (``Colville Tribes'' or ``Tribe'').
I appreciate this opportunity to provide written testimony on
Department of the Interior backlogs.
My written statement will focus on three issues that have
contributed to backlogs and have greatly hindered the ability of the
Colville Tribes and other tribes, both in the Northwest Region and
nationally, to have land taken into trust: (1) the overly restrictive
requirements associated with preparation of environmental site
assessments; (2) unnecessary and burdensome BIA region-specific
policies that make the fee-to-trust process more expensive; and (3)
funding. We also provide some recommendations on how these problems can
be alleviated. Collectively, these issues have contributed to a backlog
at the Colville Agency of nearly 100 parcels of tribally owned land
that have yet to be taken into trust.
The Colville Indian Reservation encompasses approximately 2,275
square miles and is in north-central Washington State. Although now
considered a single Indian tribe, the Confederated Tribes of the
Colville Reservation is, as the name states, a confederation of 12
aboriginal tribes and bands from all across eastern Washington. The
Colville Tribe has nearly 9,300 enrolled members, making it one of the
largest Indian tribes in the Pacific Northwest. About half of the
Tribe's members live on or near the Colville Reservation. Like many
land-based Indian tribes, the Colville Tribe is continually seeking to
restore its land base by purchasing fee properties within the
boundaries of its reservation and having these properties acquired in
Environmental Site Assessments in the Fee-to-Trust Process
One of the requirements for fee-to-trust applications is the
preparation of a Phase I Environmental Site Assessment (ESA). The
federal Superfund law, the Comprehensive Environmental Response,
Compensation and Liability Act (CERLCA), establishes a liability scheme
for determining who can be held accountable for releases of hazardous
substances on real property. CERCLA provides for an ``innocent
landowner'' defense to liability if a landowner conducts due diligence
prior to obtaining real property. Preparation of an ESA allows a
landowner to take advantage of this defense by assessing the prior
uses, ownership, and conditions on a given parcel of land.
In 2005, the Environmental Protection Agency (EPA) promulgated new
regulations for how ESAs are prepared. See 40 C.F.R. Part 312. Among
other things, the 2005 regulations created a new requirement that
specific elements of ESAs must be prepared, or updated, within 180 days
of the date of acquisition. Prior to the 2005 rule, ESAs were valid for
up to 12 months with the possibility of exceptions for longer periods
for property located in adverse climatic or geographical areas. See 602
DM 2. The 2005 regulations also created new, more stringent educational
and professional qualifications for individuals who can prepare ESAs.
Prior to 2005, the BIA determined whether an individual was qualified.
It is unclear whether or to what extent the BIA was involved in the
promulgation of this rule.
The 2005 EPA rule has brought nearly all of the fee-to-trust
activity at the Colville Agency to a standstill. Not only are the
Colville Tribes and other tribes expected to pay for the preparation of
ESAs, this expense is often multiplied because the ESAs expire and must
be updated (at additional expense) for reasons wholly outside the
tribes' control. To make matters worse, and as discussed below, the
Colville Tribes and all other tribes within the NW Region are
prohibited from using their own employees to prepare ESAs because of a
conflict of interest policy specific to the Northwest Regional office
that prohibits tribal members from preparing ESAs for their own tribes.
In short, the current regime for preparing ESAs for Indian trust
land acquisitions is unduly burdensome and accommodations must be made
to allow the fee trust process to proceed as quickly as possible and
with the least expense on tribes. Because of the expense involved and
the prospect for expiration of the ESAs, the Colville Agency has not--
apart from fractionated interests for which ESAs are not required--had
a single fee-to-trust application approved since the EPA rule became
effective in 2005.
Obstacles Imposed by BIA Regional Offices Contribute to Backlogs
Another aspect of the fee-to-trust process that contributes to
backlogs are fee-to-trust requirements that are unilaterally imposed by
individual BIA Regional offices. These policies, which affect those
tribes located within the respective region, are often longstanding
practices that may or may not have been reduced to writing or subjected
to review by the BIA's central office. Often, these policies are ``just
they way they have always done things'' but are, for practical
purposes, very difficult to rescind once institutionalized at the
regional office level.
The Colville Tribe is served by the BIA's Northwest Regional Office
in Portland, Oregon. The Northwest Region covers all tribes in
Washington, Oregon, Idaho, and some tribes in Alaska and Montana. By
way of example, the Northwest Region has in effect two policies that
impose additional burdens on the fee-to-trust process:
A. Conflict of Interest Policy for ESAs: Separate and apart
from the 2005 EPA Rule, the BIA's Northwest Regional Office
adheres to a longstanding policy that it will not accept ESAs
prepared by Indian tribes and their employees on tribally owned
properties in fee-to-trust applications because tribes ``have
organizational conflicts of interest'' with respect to these
actions. The Colville Tribe understands that this policy exists
out of the Northwest Regional Office's concern that tribal
members have a motivation to conceal potential contaminants in
ESAs so as to transfer any burden for cleanup to the United
States. Given the large number of tribal members who work for
the BIA at their own tribes' agencies, how and why such an
outdated policy continues to exist remains a mystery.
B. Chain of Surveys and Land Description Review Policy: A
December 5, 2007, memorandum from the Northwest Regional Office
directed that for all fee to trust applications, the tribal or
individual applicant must have either the Bureau of Land
Management (BLM) or a Certified Federal Land Surveyor prepare
(1) a chain of surveys; and then (2) pay to have BLM perform a
land description review. The memorandum explicitly states that
``[a]ll costs associated with these reviews are the applicant's
responsibility.'' This memorandum was apparently issued because
of an isolated instance in which a parcel was taken into trust
and it was belatedly discovered that the parcel's legal
description contained a discrepancy. The Colville Tribe
understands that while the December 5 memorandum by its terms
applies to all fee-to-trust applications it is, for practical
purposes, intended for fee-to-trust applications that involve
parcels located in urban areas or that otherwise have unique or
complex circumstances. Against this backdrop, to impose these
requirements on all tribal and individual fee-to-trust
applications is overly broad and unfair. For the Colville
Tribes and other tribes in the Northwest Region that only seek
to consolidate their tribal land bases, compliance with this
policy is nothing more than an added and unnecessary expense.
These are but two examples of outdated or burdensome policies that
one BIA region has in place that affect tribes in that region. There
are likely countless other such policies scattered throughout the other
BIA regional offices.
Finally, the Colville Tribe notes that in previous years funding
was available for Indian tribes, at least in the Northwest Region, to
conduct ESAs, cadastral surveys, and other required elements of the
fee-to-trust process. This funding has largely disappeared as budgets
for trust programs were cut in the last Administration. The Tribe is
hopeful that the Administration will ensure that future budget requests
include increases for trust programs. That Indian tribes such as the
Colville Tribes are now being forced to use tribal funds for functions
that were either formerly performed by the BIA or for which funding was
previously made available is not, in our view, consistent with the
United States' trust responsibility.
The Colville Tribe has asked the BIA to immediately rescind both of
the Northwest Region policies described above and understands that the
BIA is currently reviewing them. For the conflict of interest policy
and the preparation of ESAs generally, the Tribe has suggested to the
BIA that a more reasonable approach would be to allow tribal members,
after undergoing a certification or training program provided by the
BIA, to conduct ESAs for parcels that have not been used for commercial
purposes. The Affiliated Tribes of Northwest Indians and the National
Congress of American Indians have both enacted resolutions at their
respective 2009 annual conferences that support these recommendations.
The Colville Tribe is hopeful that such a program can be implemented.
The Colville Tribe believes it is imperative that the Department
conduct a thorough review of all policies enacted by BIA regional
offices to identify those policies that are outdated, unnecessary, or
not required by the fee-to-trust regulations. After the policies are
identified, the BIA's political leadership must be willing to rescind
those policies, even if it means doing so over the objections of the
respective regional directors.
The Colville Tribe appreciates the opportunity the submit this
statement for the record. If you or your staff have any questions or
would like additional information, please feel free to contact me.