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S. HRG. 114–275 INDIAN COUNTRY PRIORITIES FOR THE 114TH CONGRESS HEARING BEFORETHE COMMITTEE ON INDIAN AFFAIRS UNITED STATES SENATE ONE HUNDRED FOURTEENTH CONGRESS FIRST SESSION JANUARY 28, 2015 Printed for the use of the Committee on Indian Affairs ( U.S. GOVERNMENT PUBLISHING OFFICE 20–323 PDF WASHINGTON : 2016 For sale by the Superintendent of Documents, U.S. Government Publishing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Mar 15 2010 10:35 Jun 06, 2016 Jkt 020323 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\DOCS\20323.TXT JACK COMMITTEE ON INDIAN AFFAIRS JOHN BARRASSO, Wyoming, Chairman JON TESTER, Montana, Vice Chairman JOHN MCCAIN, Arizona MARIA CANTWELL, Washington LISA MURKOWSKI, Alaska TOM UDALL, New Mexico JOHN HOEVEN, North Dakota AL FRANKEN, Minnesota JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii STEVE DAINES, Montana HEIDI HEITKAMP, North Dakota MIKE CRAPO, Idaho JERRY MORAN, Kansas T. MICHAEL ANDREWS, Majority Staff Director and Chief Counsel MARY J. PAVEL, Minority Staff Director and Chief Counsel (II) VerDate Mar 15 2010 10:35 Jun 06, 2016 Jkt 020323 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\DOCS\20323.TXT JACK C O N T E N T S Page Hearing held on January 28, 2015 ......................................................................... 1 Statement of Senator Barrasso ............................................................................... 1 Statement of Senator Cantwell .............................................................................. 3 Statement of Senator Daines .................................................................................. 60 Statement of Senator Heitkamp ............................................................................. 61 Statement of Senator Lankford .............................................................................. 61 Statement of Senator Tester ................................................................................... 2 WITNESSES Bohlen, Stacy, Executive Director, National Indian Health Board ..................... 40 Prepared statement .......................................................................................... 42 Davis, Gary, Presisdent/CEO, National Center For American Indian Enter- prise Development ................................................................................................ 34 Prepared statement .......................................................................................... 36 Home Gun, Vance, 2013 Champion of Change, Youth Advisory Board Mem- ber, Center for Native American Youth ............................................................. 54 Prepared statement .......................................................................................... 55 Monette, Melvin, President, National Indian Education Association ................. 26 Prepared statement .......................................................................................... 28 Payment, Hon. Aaron, Midwest Area Vice President, National Congress of American Indians; accompanied by Jacqueline Pata, Executive Director ....... 3 Prepared statement of Hon. Brian Cladoosby ................................................ 5 APPENDIX Ballew II, Hon. Tim, Chairman, Lummi Nation, prepared statement ................ 80 Bluehouse, Randella, Executive Director, National Indian Council on Aging, Inc. (NICOA) ......................................................................................................... 70 Confederated Salish and Kootenai Tribes of the Flathead Nation, prepared statement .............................................................................................................. 66 Murkowski, Hon. Lisa, U.S. Senator from Alaska, prepared statement ............. 63 Ogaard, Thomas D., President/CEO, Native American Bank, NA, prepared statement .............................................................................................................. 63 (III) VerDate Mar 15 2010 10:35 Jun 06, 2016 Jkt 020323 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\DOCS\20323.TXT JACK VerDate Mar 15 2010 10:35 Jun 06, 2016 Jkt 020323 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\DOCS\20323.TXT JACK INDIAN COUNTRY PRIORITIES FOR THE 114TH CONGRESS WEDNESDAY, JANUARY 28, 2015 U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC. The Committee met, pursuant to notice, at 2:30 p.m. in room 628, Dirksen Senate Office Building, Hon. John Barrasso, Chairman of the Committee, presiding. OPENING STATEMENT OF HON. JOHN BARRASSO, U.S. SENATOR FROM WYOMING The CHAIRMAN. Good afternoon. I call this hearing to order. As soon as we have a quorum, we will move to the business meeting component of this. I want to welcome our witnesses. As you may have heard, we have about 18 roll call votes starting at 2:30 this afternoon, and some have recommended moving this hearing to tomorrow. But given the fact that people have traveled great distances, we want to get it done today. I want to give each of you a chance to provide your testimony before we get called away for the votes. I called this hearing to start this Congress, because it is Indian Country that we must engage when evaluating Federal Indian pol- icy and legislation. As chairman, I am committed to following in the footsteps of my predecessors, three of whom still serve on this Committee: Senator McCain, Senator Cantwell and Vice Chairman Tester. They were part of a long line of great chairmen who were committed to improving the lives of Indian people. The two tribes in my home State of Wyoming, the Eastern Sho- shone Tribe and the Northern Arapaho Tribe, they share the goals of other tribes: safe communities, good health, a prosperous life for their families, including good jobs. These goals are often stymied by Federal bureaucracy. The Federal Government has important responsibilities to Indian tribes and people. That responsibility should not create a confusing or complex web of rules which limit the prosperity of tribes and their members. Last week I had the privilege to provide the Congressional response to the National Congress of American Indians’ State of In- dian Nations address. One resounding theme of that address was to find innovative solutions and reduce bureaucracy. We have al- ready started down that path. Last week, Senator Tester and I introduced the Indian Tribal Energy Development and Self-Deter- mination Act Amendments of 2015. Tribes have the potential to (1) VerDate Mar 15 2010 10:35 Jun 06, 2016 Jkt 020323 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\DOCS\20323.TXT JACK 2 contribute to our Nation’s energy security. This bill will tap into that potential. This legislation will cut the bureaucratic red tape and let tribes develop their energy resources, putting their destiny back into their hands and not those of the Federal Government. Today, I have also introduced the Department of Interior Tribal Self-Governance Act of 2015. This bill had been around in some form or another since at least the 108th Congress. It is intended to improve the process for negotiating, reviewing, and approving tribal compacts with the Bureau of Indian Affairs. These compacts are key mechanisms for tribal administration of Indian programs. This bill would reduce Federal bureaucracy and promote local control and accountability. Significant work on these measures has been done over the years. I urge this Committee and Indian Country to join me in get- ting these measures signed into law this year. I intend to continue advancing legislation and oversight that serves similar purposes and improves the lives of Indian people. As chairman, my top priorities are jobs, energy and natural resource development, health care, education, juvenile justice and tribal self- governance. The more progress we can make on these issues, the more progress we can make in helping families. I cannot do that without the bipartisan work of this Committee and the vice chairman in particular. So I want to reiterate my appreciation for Sen- ator Tester’s leadership and the collaborative spirit that he continues to bring to this Committee. I would like to ask Vice Chairman Tester if he has an opening statement. OPENING STATEMENT OF HON. JON TESTER, U.S. SENATOR FROM MONTANA Senator TESTER. I will make it very, very brief, because I under- stand we have some votes coming right up, and I want to hear from these folks. I just want to tell you very briefly congratulations on your chairmanship. I look forward to working with you and ev- erybody else on this Committee to move Indian Country forward. There are a number of issues, some of which we will hear about today. I always think about the first time I met with the large land- based tribes. And I said, what are your priorities. After about three minutes I said, we are going to have to prioritize. Because there were just too many of them. So I think this has been a great Committee to work on. With your leadership, I look forward to good things happening. The CHAIRMAN. With your permission, Mr. Vice Chairman, what we talked about is allowing each of our guests to have an opportunity to make their statements, because we know we are going to a series of votes. Once we get a quorum here today, we will inter- rupt the testimony to have the formal business meeting and the elections. VerDate Mar 15 2010 10:35 Jun 06, 2016 Jkt 020323 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 S:\DOCS\20323.TXT JACK 3 STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM WASHINGTON Senator CANTWELL. Mr. Chairman, if I could just say congratulations to you in assuming the chairmanship of this Committee. As someone who has been the Vice Chair of the Committee under Sen- ator Akaka, myself and Senator Tester, you have worked with each of us in a great collaborative fashion. We all appreciate that. So we wish you well in taking the gavel in this Committee, and look forward to working with you on the priorities that you just mentioned. If I could just for a second thank Mary Pavel, who will be leaving the Committee as staff director. She came on during my tenure, and I appreciate her hard work and dedication on behalf of Indian Country. So thank you, Mr. Chairman. The CHAIRMAN. Thank you. If we can start, I would like to welcome the Honorable Aaron Payment, who is the Midwest Area Vice President of the National Congress of American Indians, Washington, D.C. We would love to hear from you. STATEMENT OF HON. AARON PAYMENT, MIDWEST AREA VICE PRESIDENT, NATIONAL CONGRESS OF AMERICAN INDIANS; ACCOMPANIED BY JACQUELINE PATA, EXECUTIVE DIRECTOR Mr. PAYMENT. Good afternoon, Chairman Barrasso, Vice Chair Tester and members of the Committee. My name is Aaron Pay- ment, Chair of the Sault Ste. Marie Tribe of Chippewa Indians. Thank you for allowing me to testify on behalf of NCAI’s tribal priorities for the 114th Congress. I am pleased to be here for your first hearing as chairman, Senator Barrasso. I thank the new and returning Committee members for your service to Indian Country. NCAI is committed to continuing its strong relationship with this Committee, so that we can partner to improve the lives of Native people. This partnership was evidence last week when Chairman Barrasso delivered the Congressional response to NCAI’s State of the Indian Nations address. This is a relationship that is built on trust. The trust responsibility has developed over hundreds of years pursuant to the Constitution, numerous treaties and Federal laws. President Cladoosby reminds us that the trust relationship is one that we have inherited. Tribal leaders are elected to uphold this trust relationship and as Senators, it is one that you agree to uphold when you take your oath of office. Thank you for your partnership and your commitment here. In exchange for ceding millions of acres of homelands, tribes re- served the right to continue self-governance and to exist as distinct people on our own lands. This is why the first priority we must request today is legislation to protect our homelands, lands that are necessary for economic development, cultural protection, natural resources management, housing, education and tribal infrastructure. Since 2009, this Committee has held numerous hearings, fa- vorably passed legislation in each of the past Congresses which af- firms the original intent of the Indian Reorganization Act and would allow the Secretary of Interior to take lands into trust for VerDate Mar 15 2010 10:35 Jun 06, 2016 Jkt 020323 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\DOCS\20323.TXT JACK 4 all tribes. We ask this Committee to take swift action to introduce and pass Carcieri fix legislation. In modernizing the trust relationship, we must first have cer- tainty over our lands. Indian lands and natural resources are a primary source of economic activity for our tribal communities. But the Federal trust resource management system is antiquated, inefficient and contributes to a lack of investment in many reservation economies. NCAI points to two pieces of legislation that would immediately spur economic development and trust reform. The first is Senate Bill 209, a bill to amend the Indian Tribal Energy Development and Self-Determination Act of 2004, introduced by the bipartisan team of Senators Barrasso and Tester. This bill will streamline sec- retarial approval of energy development transactions on Indian lands and give tribes more autonomy over developing our own energy resources. NCAI looks forward to working with this Com- mittee to pass this legislation. Another trust effort that NCAI supports is legislation that Sen- ator Crapo introduced last session to establish a demonstration project allowing comprehensive land use planning and allocation of trust funding in accordance with tribal priorities. NCAI supports introduction of this legislation in the 114th Congress and rec- ommends removing barriers in the appraisal, probate, land consola- tion and leasing processes. It is imperative that Congress work with NCAI, tribal organiza- tions, tribal leaders, to modernize the trust system into a process that recognizes that we are in the best position to make innovative and long-lasting decisions for our communities. Thank you, Chairman Barrasso, for making infrastructure issues a priority. In order to attract economic development, teachers, law enforcement personnel and capital investments to our tribal lands, we must meet infrastructure needs. The current transportation au- thorization, MAP–21, which contains tribal programs for construc- tion, maintenance of highways, roads, bridges and transit, is set to expire in May. With an annual budget of $450 million, this con- struction and maintenance needs of tribes continues to fall behind and creates unsafe conditions for all citizens who use our roads. In addition, the Native American Housing Assistance and Self- Determination Act expired in 2013. This bill is an excellent exam- ple of how tribes are exercising our right of self-determination to design and implement our own housing programs. Our housing needs are great. Reauthorization of NAHASDA is critical to continue to meet the housing needs of our people. We also ask this Committee to hold hearings and introduce legislation to address infrastructure needs of tribes in the areas of irri- gation, housing, transportation and broadband. My friends here will speak to issues of health care and education, including my tribal member Stacy Bohlen. I call your attention to additional areas in our written testimony including juvenile justice, tribal taxation, public safety, veterans issues and more. I ask that our written testimony, entitled Promoting Self-Deter- mination, Modernizing the Trust Relationship, be entered into the record of today’s hearing. The CHAIRMAN. Without objection. VerDate Mar 15 2010 10:35 Jun 06, 2016 Jkt 020323 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\DOCS\20323.TXT JACK 5 Mr. PAYMENT. Funding decisions made by Congress are explicit expressions of the trust relationship between our governments. I respectfully request that the members of this Committee, eight of whom are on the Appropriations Committee, please use your voices to uphold this trust relationship. Your leadership will make a dif- ference for our future generations. Again, chi-miigwetch on behalf of our NCAI team. I thank you for your service and your commitment to Indian Country. [The prepared statement of Mr. Cladoosby follows:] PREPAREDSTATEMENTOFHON. BRIANCLADOOSBY, PRESIDENT, NATIONALCONGRESS OFAMERICANINDIANS(NCAI) On behalf of the National Congress of American Indians (NCAI), I’d like to thank you for the opportunity to testify at this important hearing as the Committee seeks to set its agenda for the I 14th Congress. NCAI is the oldest and largest American Indian organization in the United States. Tribal leaders created NCAI in 1944 as a response to termination and assimilation policies that threatened the existence of American Indian and Alaska Native tribes. Since then, NCAI has fought to preserve the treaty rights and sovereign status of tribal governments, while also ensuring that Native people may fully participate in the political system. As the most representative organization of American Indian and Alaska Native tribes, NCAI serves the broad interests of tribal governments across the nation. As this Committee con- siders its agenda for the 114lh Congress, tribal nations call on you to ensure that tribal priorities are represented and honored in the decisions made in this Congress. Introduction NCAI appreciates the opportunity to present testimony on the Priorities of Indian Country for the 114lh Congress. It is important to note that the priorities that are highlighted were developed by tribal leaders in conjunction with NCAI, and that these priorities are all rooted in the modern trust relationship, self-determination, and sovereignty. The Constitution, numerous treaties, and laws have created the fundamental relationship between tribal nations and the United States. In return for ceding millions of acres of land that makes the United States what it is today, tribes codified their right of continued self-government, and to exist as distinct peoples on their own lands. Part of that responsibility includes providing basic governmental services in Indian Country. As governments, tribes must deliver a wide range of critical services, such as education, workforce development, public safety, infrastructure, and healthcare to their citizens. Tribes have the capability as governments to oversee their own affairs and, as such, should be in parity with similarly situated governments who provide services to their citizens. The recommendations below can be accomplished in this session of Congress and further the government-to-government relationship between tribal governments and the Congress. In addition, the recommendations seek to identify areas where admin- istrative barriers can be removed so that tribes can truly create opportunities for success—within our borders and beyond. Trust Modernization Indian land and natural resources are a primary source of economic activity for tribal communities, but the federal trust resource management system is antiquated, inefficient, and contributes to the anemic condition of many reservation economies. NCAI urges the Committee to support legislative reforms that will eliminate the burdensome federal red tape stifling economic development in Indian Coun- try, provide tribes with more flexibility and the option of greater control over deci- sionmaking, and prevent the reoccurrence of the trust mismanagement problems of the past. There is a need for greater efficiency in the trust resource management system, better economic returns on trust resources, and, above all, a much greater voice in how the trust will be administered. Tribes have been making progress on trust reform over the last five years and want to maintain that momentum. Tribes, working with Congress and the Adminis- tration, have seen significant settlements of trust litigation, the development of the Buy-Back program for fractionated lands, passage of the HEARTH Act to promote tribal control over surface leasing of tribal lands, and new leasing regulations that assist greatly on taxation of permanent improvements, among other matters. But VerDate Mar 15 2010 10:35 Jun 06, 2016 Jkt 020323 PO 00000 Frm 00009 Fmt 6633 Sfmt 6621 S:\DOCS\20323.TXT JACK 6 there is much more work to be done. NCAI has identified key areas of the trust system that need improvements to better serve Indian Country: • Energy. The barriers to tribal energy development have been well established by roundtables and hearings conducted by the Department of Energy and this Committee. Barriers include cumbersome bureaucratic processes that are large- ly attributable to the requirement that tribes and tribal businesses obtain Inte- rior approval for almost every step of energy development on tribal lands, including the approval of business agreements, leases, rights of way, and appraisals. Other major barriers include tribes’ and tribal businesses’ lack of access to financing and transmission and Application for Permit to Drill fees. For several Congresses, this Committee and the House Subcommittee on Indian and Alaska Native Affairs have considered legislation that would remedy the barriers to tribal energy development in the Act. This legislation, championed by Chairman Barrasso in the Senate and embodied in the 114th Congress as S. 209, would provide tribes with greater control and flexibility to develop their traditional and renewable energy resources. We urge the Committee to pass S. 209 to create careers and capital in Indian Country. • Trust modernization legislation. In the 113th Congress, legislation was introduced that would have taken great steps towards modernizing all trust processes for tribal lands. The bill, introduced by Senator Crapo in the Senate and Representative Simpson in the House, sought to establish a demonstration project allowing comprehensive land use planning and allocation of trust funding in accordance with tribal priorities. We urge that this bill be taken up again, in consultation with Tribes and the Interior Department, and moved to the President’s desk in the 114th Congress. • Appraisals and Valuation. Nearly every trust transaction requires an appraisal from the Office of Special Trustee, and this is the most significant bottleneck in the trust system. We need to eliminate unnecessary appraisals and permit tribes to rely on independent certified appraisals. • Lease Compliance and Trespass. Indian tribes have significant problems with lessees who violate lease terms and with outright trespass on Indian lands. We need legislation to improve enforcement mechanisms and authorities. This is ex- plained in more detail in the proposal for Tribal Law and Order Act Reauthor- ization below. • Conflict-of-Interest Issues. The Department of the Interior (including the Solici- tor’s Office) oversees a vast range of federal land issues that can come into conflict with their trust responsibility to protect Indian land. We need to create clearer divisions of responsibility that support the identification and resolution of conflicts of interest. • Probate. Probate of individually-owned Indian lands continues to be a bottleneck for many trust transactions, not the least of which is the Buy-Back program. Many problem areas in the probate process can be fixed through minor amendments to the Indian Land Consolidation Act. • Self-Determination and Tribal Use of Lands. The HEARTH Act was a good step forward to empower tribes to manage their own lands. We need to build on this progress for other trust resources, including subsurface lands, and to provide technical assistance to tribes that wish to pursue the HEARTH Act options. • Planning and Land Management. Tribal planning processes tend to silo into grant-driven plans for housing, transportation, water, power and sewage. Tribes need resources to integrate planning for economic development and jobs, education, agriculture and natural resources, and the development of healthy communities. There is a growing emphasis on planning for rural development and business agglomeration. Tribal industries tend to cluster in certain areas, and tribes need assistance with planning to build community infrastructure that fits today’s needs. • Land Consolidation. Individual Indian lands are often highly fractionated, and these lands are also very difficult to put to productive use. The Cobell settle- ment has established a Buy Back Program intended to consolidate these lands for greater use. However, tribes have significant questions and concerns about this centralized federal program. We urge the Committee to continue is oversight of this program and gather more information about the track record so far, and push to make the system effective and allow greater tribal involvement. • Federal Responsibilities for Title Maintenance, Technical Assistance, and Pre- vention of Land Loss. At its most basic level, the Federal Government has a responsibility to maintain title to federal Indian lands, to report title quickly and VerDate Mar 15 2010 10:35 Jun 06, 2016 Jkt 020323 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 S:\DOCS\20323.TXT JACK