[Senate Hearing 112-713]
[From the U.S. Government Publishing Office]
S. Hrg. 112-713
ADVANCING THE FEDERAL-TRIBAL RELATIONSHIP THROUGH SELF-GOVERNANCE AND
SELF-
DETERMINATION
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 20, 2012
__________
Printed for the use of the Committee on Indian Affairs
COMMITTEE ON INDIAN AFFAIRS
DANIEL K. AKAKA, Hawaii, Chairman
JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota JOHN HOEVEN, North Dakota
MARIA CANTWELL, Washington MIKE CRAPO, Idaho
JON TESTER, Montana MIKE JOHANNS, Nebraska
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
Loretta A. Tuell, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on September 20, 2012............................... 1
Statement of Senator Akaka....................................... 1
Statement of Senator Barrasso.................................... 3
Statement of Senator Murkowski................................... 34
Witnesses
Erlich, Ian, President/CEO, Maniilaq Association................. 12
Prepared statement........................................... 15
Head, Charles, Secretary of State, Cherokee Nation............... 19
Prepared statement........................................... 20
Kalipi, D. Noelani, President, TiLeaf Group...................... 26
Prepared statement........................................... 28
Roberts, Lawrence, Deputy Assistant Secretary, Indian Affairs,
U.S. Department of the Interior................................ 4
Prepared statement........................................... 6
Appendix
Allen, Hon. W. Ron, Tribal Chairman/CEO, Jamestown S'Klallam
Tribe and Chairman, Self-Governance Advisory Committee,
Department of the Interior, prepared statement................. 41
Masten, Hon. Leonard, Chairman, Hoopa Valley Tribe, prepared
statement...................................................... 42
Moyle, Hon. Alvin, Chairman, Fallon Paiute Shoshone Tribe,
prepared statement............................................. 48
ADVANCING THE FEDERAL-TRIBAL
RELATIONSHIP THROUGH SELF-GOVERNANCE AND
SELF-DETERMINATION
----------
THURSDAY, SEPTEMBER 20, 2012
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:44 p.m. in room
628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. DANIEL K. AKAKA,
U.S. SENATOR FROM HAWAII
Senator Akaka. I call this hearing of the Committee on
Indian Affairs to order.
Aloha and thank you all for being here today for the
Committee's Oversight Hearing on Advancing the Federal-Tribal
Relationship Through Self-Governance and Self-Determination.
Before we begin, I just want to take note that we have some
new artwork in the Committee room. I hope that you took time to
scan the room and see the art pieces that we have. I am so
pleased with the way that new art helps us visually represent
the diversity of Native peoples with whom the Federal
Government has trust responsibilities and for whom this
Committee works every day.
I want to offer my mahalo, my thanks, to the Smithsonian
National Museum of the American Indian, the Council on Native
Hawaiian Advancement, and [phrase in Native tongue] for loaning
the Committee the beautiful artwork and I hope that you will
take time to enjoy seeing them.
From the Constitution, it is clear our Founding Fathers
understood the sovereign authority of Tribal nations and their
governments. It is also clear the Tribal government came in a
diversity of forms. The broad terms Indian and Tribes
represented a diversity of people with unique cultures,
languages and traditions indigenous to the United States. And
as I mentioned yesterday, all of us here in this room and the
Committee staff, all will have to continue to educate our
colleagues here in the Congress to know as much as they can
about our indigenous people.
From our earliest days as a Nation, we made treaties with
the Indian Tribes. This Country made treaties with the Indian
Tribes, just as we did with a diversity of foreign nations,
governing issues such as trade, peace and other relations. With
our westward expansion during the 19th Century, Federal
objectives turned to manifest destiny and Federal policies
toward our Country's first peoples changed over time. The
movement to remove the Native peoples began.
The United States again relied on treaties with the Tribes
to facilitate the acquisition of Native lands and often
promised in exchange to provide for Indian health, education,
welfare and housing, and a guaranteed right to self-governance.
The policy errors that developed from then through the first
half of the 20th Century were marked by programs designed to
force Natives to abandon their traditional ways and assimilate
into mainstream American norms. These programs intended to
strip Native Americans of their languages, break up Tribal
bonds and land bases, and encourage Indians to focus on their
identities as individuals rather than members of Tribal
communities.
These policies and program strategies were applied to all
indigenous peoples throughout the Country, on the continent,
across the ocean and in my own home of Hawaii. And I must tell
you, because of my age and, when I was a very young man, this
happened to me, too, because, bless my mom and dad, I called
them ma and pa, they wanted the best for us. And so, even at
home, they spoke the language. But when it came to us they
said, you do not speak Hawaiian. You speak English. And the
reason was they wanted us to learn as much English as we could
so that we could progress through our own lifetime and give
service to people in the Nation.
And so for me, at that time, as I look back, they were
doing that to try to help us. And yet, I know enough now, and
we all do now, that I could have learned that language as well
as English and not banned the use of our cultural language, in
this case for English. But that happened to me, too.
So, I am passing on some history that I have gained
throughout the years and through my work here in the Congress.
The policy of banning Native language use in schools was
adopted by the Territory of Hawaii and we were discouraged from
speaking Hawaiian just as the American Indians and the Alaska
Natives were punished for using their languages in school.
The policy of allotting 160-acre parcels of land to
individual Indians began in 1887 with the enactment of the
Dawes Act as a way to break up the reservations and communal
lifestyles instead of encouraging Indians to own family farms.
In 1906, this policy was expanded to Native Alaskans. And in
1921, it was applied to Native Hawaiians, I was born in 1924,
with the passage of the Hawaiian Homes Commission Act.
Overall, these policies of assimilation failed to meet the
Federal trust responsibility to Native peoples and, in fact,
often worsened the socioeconomic conditions of Native peoples
and their communities.
In 1968 and also in 1970, Presidents Johnson and Nixon
respectively introduced policies supporting Tribal self-
determination and called for a shift in responsibility of
public programs to Tribal governments. In 1975, Congress
enacted the Indian Self-Determination and Education Assistance
Act enabling Tribes to contract the BIA and IHS to administer
Federal programs. Later legislation allowed Tribes greater
flexibility in designing and operating Indian programs and
about 60 percent of the Tribes have self-governance compacts
with BIA, IHS or both of them today.
Federal reaffirmation of Tribal sovereignty through self-
governance programs has enabled the Tribes to generate revenues
to their own business enterprises, operate court and effective
law enforcement systems, and design school curricula to better
meet the needs of Native students. Tribes have done this
without forced assimilation to mainstream American norms.
And this Federal focus on self-determination and self-
governance has proven to be the only Federal policy that has
worked for Native communities. Studies show that self-
determination policies have enabled Indian Tribes to build
strong economies, reverse decades of language loss, and tailor
programs and services to better meet the needs of their people.
So, my top legislative priority today, the Native Hawaiian
Government Reorganization Act, ensures parity in policy for all
federally-recognized Native people. It means the Native
Hawaiian people will have full access to the prevailing policy
on self-determination and finally be able to exercise their
right to self-governance. It is time for the United States to
give my people access to its best policies and Native peoples,
not just the legacies of the worst ones.
So, I want to thank all of the witnesses in advance for
being here today to share with us your perspective of self-
determination and self-governance. I thought I would bring back
a little history this morning to tell you about how these have
come about for me as I see it in our history and to try to get
to what I call a model type of self-determination and self-
governance entity that will continue to help the indigenous
peoples of this Country.
Thank you so much for listening. But I thought this would
be the basis of our discussions today as well as hearing from
our witnesses.
Now, at this I would like to ask any members for any of
their opening statements on this hearing.
Senator Barrasso.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you, Mr. Chairman, for holding this
very important hearing today. I appreciate your leadership in
advancing the Federal and Tribal relationship. Your efforts
have raised the level of dialogue on Native American issues and
you have set the course for continued improvements in these
communities.
Congress passed the Indian Self-Determination and Education
Act, as we have mentioned, as you talked about so eloquently in
this history, in 1975 to set forth a new dynamic in the
Federal-Tribal relationship. Since then, we have seen many
benefits for Indian communities. For example, Tribes can
provide more effective delivery of services and programs.
But as we know, there are also improvements that can and
should be made in both the Federal-Tribal relationship and in
the delivery of services. So I look forward to hearing from the
witnesses on where we should go from here.
I would like to mention one thing, Mr. Chairman. It comes
to mind since we have a witness today on behalf of the Cherokee
Nation. We all know that last Sunday four Americans were killed
in Afghanistan as a result of an insider attack against our
troops. One of those Americans was a young man from Claremore,
Oklahoma, John Ross Townsend who, I understand, was a citizen
of the Cherokee Nation.
We should not forget for a moment that the men and women of
our military are serving in very dangerous parts of the world
to protect the freedoms we all enjoy. Private First Class
Townsend made the ultimate sacrifice for the rest of us and we
owe him and his family a great, great debt.
Thank you, Mr. Chairman.
Senator Akaka. Thank you very much, Senator Barrasso. We
certainly want to pass on mahalo to their families for serving
our Country in that way and with their lives.
Senator Udall, do you have anything to say?
Senator Udall. No.
Senator Akaka. Thank you very much.
As Chairman, it is my goal to ensure that we hear from all
who want to contribute to the discussion. The hearing record is
open for two weeks from today and I encourage everyone to
submit comments through written testimony.
I want to remind the witnesses to please limit your
testimony to five minutes today. Serving on our first panel is
Mr. Lawrence Roberts who is the Deputy Assistant Secretary of
Indian Affairs at the Department of Interior. I want to welcome
you, Mr. Roberts, and ask you to proceed with your testimony.
STATEMENT OF LAWRENCE ROBERTS, DEPUTY ASSISTANT SECRETARY,
INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
INTERIOR
Mr. Roberts. Good afternoon, Chairman Akaka, Vice Chairman
Barrasso, Senator Udall, Members of the Committee. Thank you
for the opportunity to appear before you today at the Oversight
Hearing on Indian Self-Determination and Self-Governance.
I am the Deputy Assistant Secretary for Indian Affairs and
a member of the Oneida Nation of Wisconsin. With me today is
Sharee Freeman, the Director of the Office of Self-Governance,
and Ms. Hankie Ortiz, Deputy Director of Indian Services,
Bureau of Indian Affairs.
President Obama recognizes that Indian Tribes are
sovereign, self-governing political entities that enjoy a
government-to-government relationship with the United States.
Secretary Salazar, too, is a strong supporter of the principles
of tribal self-determination and self-governance and is
committed to working to fully enable these important policies.
This Administration believes that Tribal leadership is
critical in addressing and solving issues in Indian Country and
that Tribes must have a voice in programs and Government
efforts which are important to the lives of Tribal citizens. In
the spirit of our strong commitment, we offer our views on the
tangible progress achieved under the Indian Self-Determination
and Education Assistance Act.
The Bureau of Indian Affairs (BIA) has a long history of
entering into contracts with Tribes to operate BIA programs.
Prior to the passage of the Indian Self-Determination and
Education Assistance Act, the BIA contracted with Tribes
utilizing authorities provided under the Buy Indian Act.
However, the Buy Indian Act did not allow the BIA to work
directly with a specific Tribe to develop a contract proposal,
plan the operation of a program, and negotiate the specific
contractual agreements.
In 1975, Congress passed the Indian Self-Determination and
Education Assistance Act, a law that has proven to be one of
the most significant pieces of Federal Indian legislation.
Under the Act, Tribes may choose to have the BIA provide direct
services or the Tribe may operate BIA programs under a Title I
Contract. From its inception in 1975 through 1988, only the BIA
and the Indian Health Service were authorized to utilize the
act. During this time frame, all self-determination contracts
were considered procurement agreements and construction
agreements were not authorized.
In 1988, the Act was amended to authorize use by all
bureaus and offices within the Department. The 1988 amendment
authorized construction contracts and provided that non-
construction contracts were no longer to be construed as
procurement contracts. Title III, the Tribal Self-Governance
Demonstration Project, was also added as part of the 1988
amendments.
In 1994, Congress made additional significant amendments to
the Act. Among other things, the 1994 amendments added Title IV
establishing self-governance as a permanent option for Tribes.
These amendments authorized Tribes that meet certain criteria
to negotiate funding agreements with the department for
programs, services, functions or activities administered by the
bureau and within certain parameters by other bureaus in the
department.
Since its enactment in 1975, Tribal participation in all
aspects of self-determination contracting and self-governance
continues to expand. In Fiscal Year 2012, Indian Affairs funded
approximately $800 million to over 500 Tribes through self-
determination contracts. Under these agreements, Tribes provide
a wide range of programs and services to their members such as
law enforcement, education, road maintenance and road
construction, forestry, fisheries, real estate services,
appraisals and probates.
Programs once operated by a Tribe under self-determination
contracts and associated funding are often rolled into self-
governance funding agreements. Under self-governance, Tribes
have the authority to redesign or consolidate bureau programs,
services, functions or activities other than construction. As a
result, those funds can be used with relative flexibility to
address each Tribe's unique situation.
The number of Tribes participating in self-governance has
grown from 7 Tribes in 1991 to 251 Tribes today. These 251
Tribes are currently funded through 103 self-governance funding
agreements. The amount of funding transferred to Tribes through
self-governance funding agreements has grown from $27 million
in 1991 to $436 million in 2011.
Ultimately under Tribal self-governance each individual
Tribe determines the number and type of programs the Tribe will
operate, as well as those programs that the Federal Government
will retain. Control and flexibility in the use of funds to
meet Tribal needs promotes more efficient and effective
governance. In fact, numerous self-governance Tribes have been
accorded high honors from the Harvard Project on American
Indian Economic Development for Good Governance.
We appreciate the ways that self-governance contracts and
self-governance funding agreements under the act have helped to
strengthen the government-to-government relationship with
Tribes. Indian Tribes have been good managers of the programs
they have administered under the act. In fact, many times the
Indian Tribes add their own resources to the programs.
We support appropriate efforts to strengthen the existing
act to make it work better for the Federal Government and for
Tribes.
I appreciate the opportunity to testify before you today
and I will be happy to answer any questions you may have.
[The prepared statement of Mr. Roberts follows:]
Prepared Statement of Lawrence Roberts, Deputy Assistant Secretary,
Indian Affairs, U.S. Department of the Interior
Good afternoon, Chairman Akaka, Vice Chairman Barrasso, and Members
of the Committee. Thank you for the opportunity to appear before you
today at this Oversight Hearing on Indian Self-Determination and Self-
Governance. President Obama recognizes that federally recognized Indian
tribes are sovereign, self-governing political entities with a
government-to-government relationship with the United States
government, as provided in the U.S. Constitution, treaties, court
decisions, and federal statutes. Secretary Salazar too is a strong
supporter of the principles of tribal self-determination and self-
governance and is committed to enable these important policies.
This Administration supports tribal self-determination.
Furthermore, we believe that tribal leadership is critical in facing
and solving the problems of today, and that Native Americans must have
a voice in programs and government efforts which are important to their
lives. During the opening remarks delivered by President Obama at the
Tribal Nations Conference held on November 5, 2009, the President
affirmed that he is ``absolutely committed to moving forward with
[tribes] and forging a new and better future together. It's a
commitment that's deeper than our unique nation-to-nation relationship.
It's a commitment to getting this relationship right, so that you can
be full partners in the American economy, and so your children and your
grandchildren can have an equal shot at pursuing the American Dream.''
In the spirit of our strong commitment, we offer our views on the
tangible progress achieved under the Indian Self-Determination and
Education Assistance Act (ISDEAA), 25 U.S.C. 450 et seq.
Background
The ISDEAA is a historic Act because it requires the Department of
the Interior and the Department of Health and Human Services to
transfer various federal Indian programs to tribes, giving them the
same funds the agency would have spent on those programs. In 1975,
Congress passed and President Ford signed into law the ISDEAA, which is
one of the most significant pieces of Indian legislation enacted into
law. Under the Act, federally recognized tribes may choose to have the
Bureau of Indian Affairs (BIA) provide direct services or operate BIA
programs under an ISDEAA Title I Contract. The ISDEAA established a new
methodology for Indian tribes and the Federal Government to work
together to accomplish the intent of the President and the Congress in
establishing and funding the various Indian programs administered
through the Department of the Interior (DOI) and, specifically, the
Bureau of Indian Affairs.
Since 1975, the ISDEAA has been amended several times; three of the
most significant amendments are: P.L. 100-472 (October 5, 1988),
commonly referred to as the 1988 Amendments; P.L. 103-413 (October 25,
1994), commonly referred to as the 1994 Amendments; and P.L. 106-260
(August 18, 2000), commonly referred to as the 2000 Amendments. Title I
of the ISDEAA is the Indian Self-Determination Act, Title II is the
Indian Education Assistance Act, Title III (which has been repealed)
was the Tribal Self-Governance Demonstration Act, Title IV is the
Tribal Self-Governance Act (DOI), Title V is Tribal Self-Governance
(Department of Health and Human Services [DHHS]), and Title VI is
Tribal Self-Governance (DHHS--Feasibility Study).
The BIA has a long history of entering into contractual agreements
with Indian tribes to operate BIA programs. Prior to the passage of the
ISDEAA the BIA was contracting with Indian tribes utilizing the
authorities provided through the Buy Indian Act (25 U.S.C. 47).
However, the Buy Indian Act is a procurement act that did not allow the
BIA to work directly with a specific Indian tribe to develop a contract
proposal, plan the operation of a program, and negotiate a specific
contractual agreement.
From its inception in 1975 through 1988, only the BIA within the
Department and the Indian Health Service (IHS) within the Department of
Health and Human Services (DHHS) were authorized to utilize the ISDEAA.
During this timeframe, all Self-Determination contracts were considered
procurement agreements, awarded by Warranted Contracting Officers, and
construction contracts were not authorized. In 1988, P.L. 100-472 was
enacted and expanded the ISDEAA to authorize its use by all Bureaus and
Offices within the Department. The 1988 Amendments authorized
construction contracts and provided that non-construction ISDEAA
contracts were no longer to be construed as procurement contracts.
Title III, the Tribal Self-Governance Demonstration Project, was also
added to ISDEAA as part of the 1988 Amendments.
In 1994, P.L. 103-413 was enacted and made additional significant
amendments to the Act. P.L. 103-413 made clear that all self-
determination contracts, including construction contracts, were not to
be construed as procurement contracts. The 1994 Amendments also added
Title IV, thus establishing Self-Governance as a permanent option for
tribes. These amendments, in section 403(b), authorized federally
recognized tribes that meet criteria established for the Self-
Governance Program to negotiate funding agreements with the Department
for programs, services, functions, or activities (PSFAs) administered
by the BIA and, within certain parameters, by other bureaus of the
Department.
The ISDEAA allows federally recognized Indian tribes, tribal
organizations, and tribal consortiums to assume programs administered
by Department bureaus and offices other than the BIA, subject to
negotiations, when the programs are available to Indian tribes or
Indians because of their status as Indians. The ISDEAA also provides
the Secretary with discretion to include other programs administered by
the Secretary which are of special geographic, historical, or cultural
significance to the participating self-governance tribe requesting a
funding agreement. The ISDEAA was intended to strengthen the
government-to-government relationship between Indian tribes and the
Federal Government by putting in place a process and a procedure to
ensure that Indian tribes and the Federal Government accomplish the
goals and objectives of the tribes and ensure that Indian people had a
voice in the planning, design, and implementation of programs and
services for the benefit of Indian people.
Tribal participation in all aspects of self-determination
contracting and self-governance continues to expand. In FY 2012, Indian
Affairs funded approximately $800 million to over 500 tribes through
Title I ISDEAA Contracts.
These self-determination contracts and self-governance funding
agreements allow federally recognized tribes to plan, conduct,
consolidate, and administer federal PSFAs according to priorities
established by tribal governments. Under these agreements, tribes
provide a wide range of programs and services to their members such as
law enforcement, education, road maintenance and road construction,
forestry, fisheries, agriculture, and other natural resource programs,
rights protection and trust related programs, such as real estate
services, appraisals, probates, and welfare assistance and Indian child
welfare assistance. Under these contracts and funding agreements,
tribes have the authority to redesign or consolidate BIA PSFAs, other
than construction. In addition, tribes are allowed to carry over
unspent funds into the next fiscal year without Secretarial approval.
As a result, funds can be used with relative flexibility to address
each tribe's unique condition, provided it is for the same activity
that the funds were originally contracted for. Tribes are subject to
annual on-site visits by Department staff to monitor performance.
Tribes are also subject to annual audits pursuant to the Single Audit
Act Amendments (P.L. 104-156) and OMB Circular A-133. In addition, most
tribes have included language in their contracts and funding agreements
indicating that they will work with the Department to provide
applicable data and information pursuant to the Government Performance
and Results Act of 1993.
Self-Governance Compacts and Funding Agreements
In 1988, Congress added another option to the ISDEAA by
establishing a demonstration program allowing federally recognized
tribes to operate BIA programs under a self-governance funding
agreement. The origin of this option was an oversight hearing held in
1987 by Chairman Yates. At the hearing Chairman Yates asked if there
was a better way to conduct business in Indian country. The tribal
leaders attending the hearing proposed the concept of identifying and
transferring the tribe's share of the federal budget to the tribe so it
could govern itself without federal intervention. Chairman Yates asked
the federal and tribal leaders attending the hearing to work together
to suggest how to implement the tribal concept.
Congress enacted P.L. 100-472, which authorized the Secretary of
the Interior to negotiate self-governance compacts with up to 20
tribes. Title III was later amended to include Indian Health Service
(IHS) programs. Permanent programs were enacted as Title IV for the
Department's Indian programs and Title V for IHS programs.
The number of tribes participating in the DOI self-governance
program has grown from seven tribes in FY 1991 to 251 tribes in FY
2012. These 251 tribes are currently funded through 103 self-governance
funding agreements. The amount of funding transferred to tribes through
self-governance funding agreements has grown from $27 million in FY
1991 to $436 million in FY 2011. Given that the distribution of FY 2012
funding is ongoing and set on a two-year funding cycle, the total
amount distributed to self-governance tribes will be better known at
the end of FY 2013. In addition to BIA funds included in the funding
agreements, funds from other federal programs allocated or awarded to
self-governance tribes may be transferred with the ISDEAA funding
agreement. This includes Indian Reservation Roads funds from the
Department of Transportation and Indian employment training and related
services funds pursuant to P.L. 102-477, from the Department of Health
and Human Services Temporary Assistance for Needy Families (TANF),
Child Care, and Native Employment Works (NEW) funds as well as
Department of Labor, Workforce Investment Act (WIA) funds.
The DOI Office of Self-Governance (OSG) administers the Self-
Governance Program with respect to PSFAs that would otherwise be
performed by BIA The OSG is located within the Office of the Assistant
Secretary--Indian Affairs (AS/IA). The Director of OSG reports to the
Deputy Assistant Secretary--Policy and Economic Development within the
Office of the Assistant Secretary--Indian Affairs. OSG was organized so
as not to duplicate BIA field structure and operations.
OSG administers the government-to-government relationships with a
steadily increasing number of self-governance tribes, currently greater
than 45 percent of all federally recognized tribes in Indian country.
In recent years, there has been a steady increase of 2-3 new self-
governance tribes per year. OSG has a full range of responsibilities to
self-governance tribes, including the following:
Assist in the growth of tribal self-governance by
disseminating information and developing education products;
Work with additional tribes to join the DOI tribal self-
governance program;
Select tribes to participate in the DOI tribal self-
governance program;
Negotiate self-governance compacts with new self-governance
tribes;
Conduct annual negotiations of funding agreements for BIA
programs with each self-governance tribe;
Provide financial management, budgeting, accounting, and
contracting services associated with the reprogramming and
transfer of funds from BIA programs and other federal programs
associated or awarded to self-governance tribes;
Schedule and reconcile fund transactions with program and
account managers in BIA and other federal agencies;
Satisfy the program accountability requirements of other
federal agencies, the BIA, and OSG;
Maintain financial integrity and accurate delivery and
reporting of all funds negotiated in self-governance funding
agreements;
Work with tribes, the Assistant Secretary's Office of
Internal Evaluation and Assessment, and the Department's
National Business Center to review and close all outstanding A-
133 audits of self-governance tribes;
Consult with self-governance tribes to avoid and resolve
policy issues through the Self-Governance Advisory Committee,
which meets quarterly with the Assistant Secretary--Indian
Affairs;
Provide technical assistance on policy and program matters
affecting self-governance tribes;
Provide a central point for coordinating and resolving
policy and practical self-governance issues;
Work with self-governance tribes and federal policy
officials to implement tribal self-governance and resolve
issues or problems which arise;
Process requests for waivers of BIA regulations;
Prepare and submit an annual report to Congress with the
views of self-governance tribes;
Review legislative proposals that impact tribal programs;
and
Implement tribal self-governance by serving Indian
communities, including the development and implementation of
regulations, policies, and guidance in support of self-
governance initiatives.
Tribal self-governance was established with the purpose of reducing
the number of staff and costs needed to administer the program so that
more resources can be provided and used by self-governance tribes. The
OSG has worked to gain efficiencies through a number of means. For
example, OSG and self-governance tribes work together to integrate the
negotiation and financial management functions through the development
of a self-governance data base which provides transparency, accuracy,
efficiency, and effectiveness of operation in the implementation of
tribal self-governance. The database allows self-governance tribes to
see their federal accounts in real-time as an Internet based system and
minimizes OSG resources needed to perform some financial management
functions.
Another example of an initiative to gain efficiencies includes OSG
working with tribes to develop a Tribal Data Exchange (TDE) system to
automate the collection of information from tribes. DOI requires
complex sets of data to support budget formulation, funds distribution,
program management, and statutory and regulatory reporting processes.
OSG and self-governance tribes often receive multiple requests for data
that are repetitive, time consuming, and lack method or form of
electronic collection. OSG, working with self-governance tribes on the
Data Management Committee established by the Tribal Budget Advisory
Committee (now called the Tribal Interior Budget Committee), reached
out to contracting tribes as well as direct service tribes to develop a
data collection and reporting tool that enables timely and accurate
collection, analysis, reporting, and delivery of tribal data. This tool
is designed to meet the internal and external data collection and
reporting needs of tribes.
OSG is working with self-governance tribes on a number of other
initiatives. One is the development of a training curriculum for senior
managers, new tribes, and an on-line product for federal employees.
Another is the development of a funding methodology matrix study that
involves the review of all BIA program funding and the methodologies
used by the Bureau.
Before entering into tribal self-governance, a tribe must provide
authorization from its tribal governing body, complete a planning
phase, and demonstrate, for the previous three fiscal years, financial
stability and financial management capability as evidenced by having no
material audit exceptions in its required annual audit of its self-
determination contracts. As a result, programs once operated by a tribe
under self-determination contracts and associated funding are often
rolled into self-governance funding agreements. Under tribal self-
governance, each individual tribe determines the relationship it wants
to have with the Federal Government, including the number and type of
programs the tribe will operate, as well as those programs that the
Federal Government will retain.
Under tribal self-governance, there is authority to negotiate
annual and multi-year funding agreements and receive funding which
enable tribes to plan, conduct, consolidate, and administer PSFAs for
tribal citizens according to priorities established by their tribal
governments. Unlike tribes that contract under Title I of the ISDEAA,
self-governance tribes do not report to a federal contracting officer
and do not operate under a scope of work. Tribal staff report to the
tribal council who in turn report to tribal citizens. Self-governance
tribes have reduced reporting requirements.
Control and flexibility in the use of funds to meet tribal
conditions, needs, and circumstances promotes more efficient and
effective governance and is a major source of significant relative
benefits of tribal self-governance. In fact, numerous self-governance
tribes are award recipients who have been accorded high honors from the
Harvard Project on American Indian Economic Development for Good
Governance (Ak-Chin Indian Community for its Community Council Task
Force; Chickasaw Nation for its Chickasaw Press; Choctaw Nation for its
Domestic Violence Prevention Project; Citizen Potawatomi Nation for
Constitutional Reform; Makah Tribe for its Cultural Education &
Revitalization Program; Muscogee (Creek) Nation for its Reintegration
Program; Oneida Tribe of Indians of Wisconsin for its Oneida Nations
Farms; Osage Nation for its Governmental Reform Initiative; Red Lake
Band of Chippewa Indians for its Walleye Recovery Program; Confederated
Salish & Kootenai Tribes of the Flathead Nation for its Trust Resources
Management; Tulalip Tribes of Washington for its Quil Ceda Village
developed to achieve economic diversification; and Confederated Tribes
of the Umatilla Indian Reservation for its Free Transportation System).
Relative benefits of tribal self-governance are also generated by:
Waivers of Federal regulations when not prohibited by
Federal law or inconsistent with the terms of the funding
agreement;
Tribes having the authority to incorporate Title I
provisions into their self-governance funding agreements;
Tribes not being required to abide by Federal Program
Guidelines, Manuals, and Policy Directives;
Self-governance funds being treated as non-federal funds for
meeting matching requirements;
Eligibility to receive lump sum advance payments;
Authority to invest advance payments to generate interest
not accountable to DOI or a special revenue fund;
Establishment of a tribal base budget to promote stability
of funding over time;
Eligibility to receive new funds on the same basis as other
tribes;
Eligibility to receive non-recurring funds including
project, and needs based funds; and
Eligibility to receive pass-through funds from other
Agencies which are administered by BIA.
Self-governance tribes are subject to annual trust evaluations to
monitor the performance of trust functions they perform to ensure that
there is no imminent jeopardy to physical trust assets, natural
resources, and public health and safety. They are also subject to
annual audits pursuant to the Single Audit Act and OMB Circular A-133,
to ensure that audit standards are met and there is financial
accountability of their tribal operations. In addition, most self-
governance tribes have included language in their funding agreements
indicating that they will work with the BIA to provide applicable
program performance data and information pursuant to the Government
Performance and Results Act of 1993.
Conclusion
We appreciate the ways that self-determination contracts and self-
governance funding agreements under this Act have helped to strengthen
the government-to-government relationship with Indian Tribes. Indian
tribes have been good managers of the programs they have undertaken
through contracts and funding agreements under the ISDEAA. Many times,
Indian tribes add their own resources to the programs and are able to
fashion programs to meet their needs and the particular needs of their
members. Indian tribes are also better suited to address the changing
needs of their members.
We appreciate the opportunity to provide our thoughts at this
oversight hearing. On a broader note, I would like to reiterate this
Administration's commitment to the government-to-government
relationship with tribes. Many challenges face our Native American
communities and this Administration is committed to working with this
Committee and with tribes so that, together, we can create
opportunities for these communities to grab hold of their future and to
thrive and flourish.
This concludes my statement and I will be happy to answer any
questions you may have.
Senator Akaka. Thank you very much, Mr. Roberts, for your
testimony.
Mr. Roberts, Tribes participating in self-governance
programs have successfully utilized the program to meet the
needs of their citizens. Other Tribes, as you know, wish to
receive services directly from the BIA as bargained for in
treaties. What is the department doing to balance the funding
needs of both self-governance and direct service Tribes?
Mr. Roberts. Thank you, Chairman Akaka, for that question.
The department takes a view that it is up to every Tribe to
determine which programs and which services they will take on
and which services and programs they want administered by the
Federal Government. In terms of an allocation of funds and how
those funds are distributed between direct services and self-
governance Tribes, that varies from year to year depending on
the agreements with Tribes.
Senator Akaka. Thank you. Mr. Roberts, Tribes already note
the chronic under-funding of contract support costs. What
affect will sequestration have on these funds?
Mr. Roberts. Well, I think sequestration itself would have
a negative impact, Mr. Chairman. I think that the next panel
may be able to provide information to the Committee regarding
how those impacts are felt on the ground.
Mr. Akaka. Well, thank you for that. I know that the
department is trying to give the Tribes independent decisions
to make and you continue to do that.
Mr. Roberts, H.R. 2444 is a bill introduced in the House of
Representatives aiming to amend the Indian Self-Determination
and Education Assistance Act to impart streamlined regulations
making it easier for Tribes to manage both Title IV and Title V
programs. In the department's opinion, how would that bill
advance the Federal-Tribal relationship through self-
governance?
Mr. Roberts. Thank for the question, Mr. Chairman. Last
fall, the department did testify in support of H.R. 2444 before
the House Committee on Natural Resources. And our support
there, we worked closely with Tribes to develop language that
led directly to that legislation. My understanding is that the
department's position with regard to that legislation has not
changed and I think that legislation is intended to help
streamline and make things more efficient in approving those
programs and contracts.
Senator Akaka. In your testimony, you highlighted a few
initiatives being worked on between the Office of Self-
Governance and self-governance Tribes, including developing a
curriculum for senior managers in new Tribes and a funding
matrix methodology study. Can you tell us the expected outcomes
of those initiatives?
Mr. Roberts. Well, I know, thank you, Mr. Chairman, I know
that we are working very hard on the curriculum and hoping to
move that forward soon. With regard to the funding matrix
itself, I would like to submit something for the record if that
is okay. I am not entirely up to speed on that at this point in
time.
Senator Akaka. Thank you very much. I would certainly
appreciate that.
I want to thank you very much for being here and also for
your testimony and your responses to our questions. As I
mentioned in my history studies, you know, things will change
and will continue to change and this Government needs to
continue to adjust those changes as we move along in the best
interests of the people.
So, I appreciate what you folks are doing and I look
forward to continuing to work with you on these matters. And if
you have any recommendations to make legislatively, please let
us know and we can discuss it, all for the sake of helping the
indigenous peoples.
Mr. Roberts. Thank you, Mr. Chairman. Thank you for having
me here today and thank you for your leadership to the
Committee and on behalf of the Native people.
Chairman Akaka. Well, thank you again and I wish you well.
Thank you, Mr. Roberts.
I would like to invite the second panel to the witness
table. Serving on our second panel is Mr. Ian Erlich who is
President of the Maniilaq Native Association in Kotzebue,
Alaska; Mr. Charles Head, Secretary of the State of the
Cherokee Nation in Tahlequah, Oklahoma; and Ms. Noelani Kalipi,
President of the TiLeaf Group in Hilo, Hawaii. Welcome to all
of you. We are delighted to have you here with us.
Mr. Erlich, will you please proceed with your testimony.
STATEMENT OF IAN ERLICH, PRESIDENT/CEO, MANIILAQ ASSOCIATION
Mr. Erlich. Thank you, Mr. Chairman.
My name is Ian Erlich. I am the President and Chief
Executive Officer of Maniilaq Association, an Alaska Native
regional non-profit organization representing 12 Tribes in
Northwest Alaska. I am thankful for the opportunity to testify
regarding ways to advance the Federal-Tribal relationship
through self-governance and self-determination.
The Maniilaq Association has been involved with self-
governance from its inception. As such, we understand the many
important benefits of self-governance. We also understand the
ways in which self-governance needs to be improved to provide
Tribes with the best tools possible to continue to advance the
essential goals of self-governance.
The Maniilaq Association has for many years carried out a
range of health and social service programs in Northwest Arctic
Borough on behalf of its member Alaska Native villages under
the self-governance provisions of the Indian Self-Determination
and Education Assistance Act, ISDEAA, including primary
healthcare services, emergency treatment, mental and behavioral
health services and health education, promotion and healthy
lifestyle practices.
The Maniilaq Association's participation in self-governance
is a true success story. The Maniilaq Association is proud to
report that, because of our involvement in self-governance,
there is now a functional but, as I will discuss in a few
minutes, severely under-funded clinic in each of its member
villages.
Most recently, the Maniilaq Association completed the
construction of a long-term care facility adjacent to the
health center. Completion of this project has been a long-term
goal of the Maniilaq Association and was the product of many
years of hard work. Final construction of the 18-bed facility
was completed last year. The facility's first residents are
moved in and the facility has enjoyed immense success.
The Maniilaq Association also participates in self-
governance with the Department of the Interior under Title IV
of the ISDEAA, including compacting of several Bureau of Indian
Affair programs, functions, services and activities such as
public safety and justice, job placement and training, natural
resources, agriculture, forestry, wildlife and parks.
The Maniilaq Association has also entered into a compact
and funding agreement with one non-BIA agency, the National
Parks Service, to perform custodial services, maintenance
services and cultural education curriculum development at the
Northwest Arctic Heritage Center. Maniilaq is also currently
pursuing self-governance agreements with other non-BIA agencies
but is still awaiting responses to requests made years ago for
information regarding compactable PFSAs from these non-BIA
agencies which appear reluctant to compact such programs.
While the Maniilaq Association's involvement in self-
governance has resulted in significant positive developments
for its Alaska Native villages and Native people, we continue
to face serious funding challenges. I will briefly describe the
three most pressing of these issues.
First is the chronic underfunding of contract support costs
which continues to impose major hardships on Tribal healthcare
providers and patients around the Nation, including Alaska. As
just one example, according to IHS' own CSC Shortfall Report,
Maniilaq suffered a CSC shortfall for its Title IV health care
programs alone at over $5 million for Fiscal Year 2009.
We urge the Committee to continue to press for full funding
of contract support costs to allow Maniilaq and other Tribal
providers to use all program funds for the purposes Congress
intended.
The second pressing issue is the chronic underfunding of
Village Built Clinics, known as VBCs. VBCs are essential for
maintaining the IHS Community Health Aide Program, CHAP, in
Alaska, which provides the only local source of healthcare for
over 41,000 Alaska Native people.
Despite their having enough appropriations to fully fund
leases, the amount of funds IHS transfers to the Maniilaq
Association and other Tribal organizations for VBC leases is
not sufficient to cover the costs of repair and renovation of
the VBCs as necessary to maintain them in a safe condition.
Many clinics have been closed due to the hazards to the health
service employees and patients, leaving villages without a
clinic or access to CHAP services.
For example, by Fiscal Year 2006 the lease rentals paid by
IHS to the villages covered only 55 percent of operating costs.
Maniilaq Association and other Tribal organizations in Alaska
have discussed this issue with IHS on many occasions but the
IHS continues to refuse to provide additional funding for the
VBCs, forcing Maniilaq into a litigation posture with the
agency.
The third pressing issue is change to the funding cycle for
Indian Health Service appropriations. For more than a decade,
Federal appropriation bills have not been enacted prior to the
beginning of the Federal Fiscal Year and have included several
continuing resolutions causing funding under the ISDEAA to be
uncertain and to trickle in over time. This has hampered the
efforts of Tribes, Tribal and IHS healthcare providers to
provide healthcare services, maintain and construct facilities,
recruit professionals and staff and carry out other health-
related functions.
These problems could be mitigated by an advance
appropriation, funding that becomes available one year or more
after the year of the appropriation's act in which it is
contained. Congress provides such advanced appropriations to
three Veterans Administration medical accounts to allow the VA
to know its medical funding a year earlier and avoid continuing
resolutions.
This provides a compelling argument for Tribes and Tribal
organizations to be given equivalent status with regard to IHS
funding. We thus request that legislation be introduced and
enacted amending the Indian Healthcare Improvement Act to
authorize IHS advance appropriations and take such other steps
as are necessary to provide such advance appropriations.
Finally, two major initiatives must be mentioned when
discussing the future of Tribal-Federal relationships as it
relates to self-governance and self-determination.
The first is the ongoing effort to update Title IV to
create consistency between Title IV self-governance and the DOI
and Title V self-governance in the DHHS to create
administrative efficiency for Tribes. Most recently, Tribes
faced opposition to such legislation from those interests that
wish to limit the scope of non-BIA programs available for self-
governance compacting, including an effort to specifically
exclude all water settlements as non-compactable under Title
IV.
We strongly support the revisions to Title IV in order to
create consistency between Title IV self-governance and the DOI
and Title V self-governance in DHHS while leaving the existing
provisions on the non-BIA programs as they are currently.
The proposed amendments to Title IV would significantly
advance Congress' policy of strengthening Tribal self-
governance, allowing Tribes to prioritize their needs and plan
for the future in a way that is consistent with each Tribe's
culture, traditions and institutions. The time has come to pass
this legislation amending Title IV.
The second major initiative that is vital to the future of
self-governance is the effort to extend Tribal self-governance
to DHHS agencies other than only the Indian Health Service. In
2003, the department's own feasibility study concluded that a
Title VI demonstration project was feasible and identified 11
programs that could be included in the project.
Recently, DHHS convened a self-governance Tribal-Federal
work group to develop detailed recommendations on how to
overcome the legal and logistical barriers to implementing
self-governance in non-ISH agencies. However, Federal
representatives do not appear willing to base current
discussions on the department's 2003 feasibility study. Tribal
representatives see a fundamental transformation of the
grantor-grantee relationship in a government-to-government
relationship through ISDEAA while Federal representatives cling
to the former model.
At this stage it appears clear that the legislation will be
necessary to bring self-governance to non-IHS program within
DHHS. More specifics on each of these items I have discussed
today can be found in my written testimony submitted to the
Committee.
In conclusion, I thank the Committee for holding this
important hearing and advancing the Federal-Tribal relationship
through self-governance and self-determination. On behalf of
the Maniilaq Association, including our 12 constituent villages
and their members, I sincerely hope that this Congress will
address the chronic underfunding of contract support costs,
Village Built Clinics and address the timing of ISH
appropriations and move forward with efforts to amend Title IV
of the ISDEAA to extend Title IV self-governance to non-IHS
programs within the DHHS.
I am ready to respond to any questions from the Committee.
[The prepared statement of Mr. Erlich follows:]
Prepared Statement of Ian Erlich, President/CEO, Maniilaq Association
Introduction and Brief History
My name is Ian Erlich and I am President and Chief Executive
Officer of the Maniilaq Association, an Alaska Native regional non-
profit organization representing twelve tribes in Northwest Alaska. I
am thankful for the opportunity to testify regarding ways to advance
the Federal-Tribal Relationship through Self-Governance and Self-
Determination. The Maniilaq Association has been involved with Self-
Governance from its inception. As such, we understand the many
important benefits of Self-Governance. We also understand the ways in
which Self-Governance needs to be improved to provide tribes with the
best tools possible to continue to advance the essential goals of Self-
Governance.
Congress, in enacting the Indian Self-Determination and Education
Assistance Act (ISDEAA) in 1975, sought to encourage Indian tribes to
develop self-determination by authorizing them the right to negotiate
agreements with federal agencies in which funds and responsibilities
for operating federal programs, services, functions and activities
(hereinafter PFSAs) were transferred to tribes. In effect, through the
ISDEAA, tribes step into the shoes of the Federal Government by
assuming the responsibility for providing PFSAs formerly provided by
federal agencies. That, in turn, builds the tribe's ability to perform
essential governmental functions and allows tribes to improve the PFSAs
by making them more responsive to tribal needs.
Congress significantly amended the ISDEAA three times since its
enactment in 1975. 1988, 1994, and 2000, in each instance to expand the
successful law. The 1994 amendments revised a number of provisions in
Title I and included a new Title IV, which implemented a permanent
Tribal Self-Governance program within the Department of the Interior
(DOI). The 2000 amendments included a new Title V, which repealed the
Title III Self-Governance demonstration project and enacted a permanent
Self-Governance program within the Department of Health and Human
Services (DHHS).
As stated above, the Maniilaq Association has participated in Self-
Governance from its inception, both under Title V (Self-Governance
compacting with the IHS) and Title IV (Self-Governance compacting with
the DOI). Below I briefly describe our history and successes under each
program before discussing the ways in which Self-Governance can be
improved and ways in which Self-Governance can be moved forward to
advance the Federal-Tribal relationship.
Maniilaq Association's Participation in Self-Governance: A Success
Story
1. Self-Governance Under Title V of the ISDEAA (Compacting with the
IHS)
The Maniilaq Association has for many years carried out a range of
health and social services programs in the Northwest Arctic Borough on
behalf of its member Alaska Native villages under the Self-Governance
provisions of the ISDEAA, including primary health care services,
emergency treatment, mental and behavioral health services and health
education, promotion and healthy lifestyle practices. The Maniilaq
Association carries out these programs in accordance with the Alaska
Tribal Health Compact (ATHC)--a single agreement among the Indian
Health Service and all tribes and tribal organizations in the State of
Alaska, and its own, individual Funding Agreement with the Indian
Health Service. The ATHC authorizes the co-signers to operate their own
health care programs while maintaining their autonomy with respect to
determining health priorities and what services to be provided and how
health policies will be carried out within their respective service
areas.
The Maniilaq Association's participation in Self-Governance is a
true success story. The Maniilaq Association is proud to report that
because of our involvement in Self-Governance there is now a functional
(but, as noted below, severely underfunded by the Indian Health
Service) clinic in each of its member villages. Most recently, the
Maniilaq Association completed the construction of a long term care
facility adjacent to its Health Center. Completion of this project had
been a long term goal of the Maniilaq Association and was the product
of many years of work. Final construction of the 18-bed facility was
completed last year. The facility's first residents are moved in and
the facility has enjoyed immense success.
2. Self-Governance Under Title IV of the ISDEAA (Compacting with the
BIA and Non-BIA Agencies in the DOI)
The Maniilaq Association also participates in Self-Governance with
the Department of the Interior (DOI) under Title IV of the ISDEAA.
Currently, Maniilaq has a Title IV Self-Governance compact and Annual
Funding Agreement for several PFSAs and associated funding with the
Bureau of Indian Affairs (BIA). Under that agreement, Maniilaq provides
a broad range of PFSAs to its member villages, including Public Safety
and Justice, Job Placement and Training, Natural Resources, Agriculture
(food preservation), Forestry, Wildlife and Parks, Real Estate
Services, Environmental Quality and Wildland Fire Management/Pre-
Suppression.
Under Title IV a tribe or tribal organization may also compact non-
BIA PFSAs, or portions of such PFSAs, with agencies other than BIA,
which are of special geographic, historical, or cultural significance
to a tribe or tribal organization. Under this provision, the Maniilaq
Association entered into a compact and funding agreement with the
National Park Service in 2011 to perform Custodial Services,
Maintenance Services, and Cultural Education Curriculum Development at
the Northwest Arctic Heritage Center. Maniilaq is also currently
pursuing Self-Governance agreements with other non-BIA agencies
including the U.S. Fish and Wildlife Service; Minerals Management
Service; Bureau of Land Management; Office of Surface Mining,
Reclamation and Enforcement; and the U.S. Geological Survey
(hereinafter ``non-BIA agencies''). The Maniilaq Association is still
awaiting responses to requests made years ago for information regarding
compactable PFSAs from these non-BIA agencies, which appear reluctant
to compact such programs.
Continued Financial Challenges Maniilaq Association Faces in Advancing
Self-Governance
While the Maniilaq Association's involvement in Self-Governance has
resulted in significant positive developments for its Alaska Native
Villages and Native people, we continue to face serious challenges that
come from chronic underfunding of compacts and critical programs, as
well as uncertain funding. The three most pressing of these funding
issues are described below:
1. Chronic Contract Support Cost (CSC) Underfunding.
Underfunding of contract support costs (CSC) continues to
impose major hardships on tribal health care providers and
patients around the nation, including Alaska. Last year the
House proposed funding IHS for contract support costs at
$574,761,000, which would have reduced the CSC shortfall
dramatically. Ultimately, however, Congress appropriated
$471,437,491, requiring tribes to divert over $100 million from
health care services to fixed administrative expenses. Just
within the last several years, according to the IHS's own CSC
Shortfall Report, Maniilaq suffered a CSC shortfall for its
Title V health care programs alone of $5,152,747 for FY 2009
and $2,612,499 for FY 2010. Figures for FY 2011 are not yet
released. We urge the Committee to continue to press for full
funding of contract support costs. Assuming a modest increase
in program funding, we estimate that a CSC appropriation of
$595,000,000 would come close to eliminating the shortfall,
allowing Maniilaq and other tribal providers to use all program
funds for the purposes Congress intended.
2. Chronic Underfunding of Village Built Clinics (VBC).
Village Built Clinics are essential for maintaining the IHS
Community Health Aide Program (CHAP) in Alaska. The CHAP
provides the only local source of health care for over 41,000
Alaska Native people. Since the CHAP program could not operate
in most of rural Alaska without the use of clinic facilities in
Alaska Native villages, IHS established the ``village built
clinic'' leasing program in 1970. Yet, the IHS has consistently
under-funded the leases of the VBCs despite having available
appropriations to fully fund the leases. The amount of funds
IHS transfers to the Maniilaq Association and other tribal
organizations for VBC leases is not sufficient to cover the
cost of repair and renovation of the VBCs as necessary to
maintain them in a safe condition. Many clinics have been
closed due to the hazards to the health service employees and
patients, leaving villages without a clinic or access to CHAP
services. Lease rental amounts for VBCs have failed to keep
pace with costs--the majority of leases have not increased
since 1989. By FY 2006, the lease rentals paid by IHS to the
villages covered only 55 percent of operating costs. The
Maniilaq Association and other tribal organizations in Alaska
have discussed this issue with the IHS on many occasions, but
the IHS continues to refuse to provide additional funding for
the VBCs. For the FY 2013 appropriations, we request that an
additional $7.8 million \1\ be appropriated to help fully fund
VBC leases in 2013. Unfortunately, the chronic underfunding of
VBCs and the IHS's lack of assistance aimed at solving this
crisis has forced the Maniilaq Association into a litigation
posture with the IHS as we seek to restructure the VBC lease
arrangements in a way that recovers the full costs of operation
and maintenance.
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\1\ In previous testimony Maniilaq Association requested an
additional $6.8 million, but it now believes an additional $7.8 million
is needed because rural fuel costs are inflating faster than
anticipated.
3. Change to Funding Cycle for Indian Health Service
Appropriations. For more than a decade, federal appropriations
bills have not been enacted prior to the beginning of the
federal fiscal year and have included several continuing
resolutions, causing funding under the ISDEAA to be uncertain
and to trickle in over time. This has hampered the efforts of
tribal and IHS health care providers to provide health care
services, maintain and construct facilities, recruit
professionals and staff, and carry out other health-related
functions. These problems could be mitigated by an advance
appropriation-funding that becomes available one year or more
after the year of the appropriations act in which it is
contained. For example, if FY 2014 advance appropriations for
the IHS were included in the FY 2013 Interior, Environment and
Related Agencies Appropriations Act, those advance
appropriations would not be counted against the FY 2013
Interior Appropriations Subcommittee's funding allocation but
rather would be counted against its FY 2014 allocation. It
would also be counted against the ceiling in the FY 2014 Budget
Resolution, not the FY 2013 Budget Resolution. Congress
provides such advance appropriations to three Veterans
Administration (VA) medical accounts to allow the VA to know
its medical funding a year earlier and avoid continuing
resolutions. The fact that Congress has implemented advance
appropriations for the VA medical programs provides a
compelling argument for tribes and tribal organizations to be
given equivalent status with regard to IHS funding. Both
systems provide direct medical care and both are the result of
federal policies. Just as the veterans groups were alarmed at
the impact of delayed funding upon the provision of health care
to veterans and the ability of the VA to properly plan and
manage its resources, tribes and tribal organizations have
those concerns about the IHS health system. We thus request
that legislation be introduced and enacted amending the Indian
Health Care Improvement Act to authorize IHS advance
appropriations and take such other steps as are necessary to
---------------------------------------------------------------------------
provide such advance appropriations.
Two Key Efforts to Advance the Tribal-Federal Relationship Through
Self-Governance and Self-Determination
Two major initiatives must be mentioned when discussing the future
of the Tribal-Federal relationship as it relates to Self-Governance and
Self-Determination: (1) the efforts to amend Title IV of the ISDEAA to
create consistency between Title IV and Title V; and (2) the current
work to expand Tribal Self-Governance to non-IHS agencies within the
DHHS under Title VI.
1. Current Efforts to Amend Title IV. The first major issue
for the ISDEAA moving forward is the ongoing effort to update
Title IV and make it consistent with Title V. Discussions
continue surrounding several different proposals to amend H.R.
2444 (i.e., the Department of the Interior Tribal Self-
Governance Act of 2011 to create a new draft bill, and the
Department of the Interior Tribal Self-Governance Act of 2012
for introduction in either the House of Representatives or the
Senate during the current congressional session). The
amendments to Title IV of the ISDEAA are important to the
evolution of Self-Governance. Most significantly, these
amendments would create consistency between Title IV Self-
Governance in the DOI and Title V Self-Governance in the DHHS
and create administrative efficiency for tribes. H.R. 2444, the
Department of the Interior Tribal Self-Governance Act of 2011,
was introduced in the House of Representatives in July of 2011.
H.R. 2444 has yet to pass in the House and no similar bill has
yet been introduced in the Senate. H.R. 2444 was a re-
introduction of a similar bill, H.R. 4347, the Department of
the Interior Tribal Self-Governance Act of 2010, which passed
the House but failed to pass the Senate due to DOI opposition
to several provisions of the bill. Most recently tribes face
opposition to H.R. 2444 from those interests that wish to limit
the scope of non-BIA programs available for Self-Governance
compacting, including an effort to specifically exclude all
water settlements as non-compactable under Title IV. Tribes are
currently working with staff of the Senate Committee on Indian
Affairs to develop language that is mutually agreeable to both
sides. We strongly support the revisions to Title IV, in order
to create consistency between Title IV Self-Governance in the
DOI and Title V Self-Governance in the DHHS, while leaving the
existing provisions on non-BIA programs as they are currently
in the ISDEAA. The proposed amendments to Title IV will
strengthen tribal Self-Governance, allowing tribes to
prioritize their needs and plan for the future in a way that is
consistent with each tribe's culture, traditions and
institutions. The time has come to pass this legislation
amending Title IV, which would significantly advance Congress's
policy of promoting Tribal Self-Governance.
2. Efforts to Extend Title V Self-Governance to Other Agencies
within the DHHS. The second major issue relating to the future
of the ISDEAA is the continuing effort to extend Tribal Self-
Governance to DHHS agencies other than only the Indian Health
Service. Title VI of the ISDEAA mandated a feasibility study
for including non-IHS agencies within the DHHS in a Self-
Governance demonstration project and directed the DHHS
Secretary to examine the feasibility of applying Title V to
other agencies in the DHHS. As a result, the Department's 2003
Feasibility Study concluded that a Title VI demonstration
project was feasible, identified eleven programs that could be
included in the project, and set forth recommendations and
parameters for the legal framework of the project. Since that
time, however, no further progress has been made. To assist
DHHS in implementing Title VI and other Self-Governance
initiatives, DHHS convened a Self-Governance Tribal Federal
Workgroup (SGTFW) consisting of ten tribal delegates and ten
alternates from around the country, which began meetings in
January of this year. The charge of the Workgroup is to develop
detailed recommendations on how to overcome the legal and
logistical barriers to implementing Self-Governance in non-IHS
agencies. However, from the beginning the gulf between the
federal and tribal visions of Title VI implementation was
apparent. Federal representatives do not appear willing to base
current discussions on the Department's 2003 Feasibility Study.
By contrast, Tribal representatives felt strongly that the 2003
Feasibility Study should provide the foundation and starting
point of the SGTFW's work so as to not be duplicative.
Importantly, tribal representatives envision a program that
uses funding agreements with the key substantive and procedural
protections of Title V, adapted to fit the distinctiveness of
the non-IHS agencies. Federal representatives, however, have
urged tribal representatives to scale back their vision and
consider non-ISDEAA models such as the 477 program \2\ or
inclusion of Self-Governance language in the legislative
reauthorization of some single program. Thus, where tribal
representatives see a fundamental transformation of the
grantor-grantee relationship into a government-to-government
relationship, federal representatives cling to the former
model. At this point it is not clear where the Title VI
initiative will go, but legislation will be necessary to bring
Self-Governance to non-IHS programs within DHHS.
---------------------------------------------------------------------------
\2\ P.L. 102-477, Indian Employment, Training and Related Services
Act, which allows tribes to consolidate federal employment and training
formula-funded grants.
---------------------------------------------------------------------------
Conclusion
The Indian Self-Determination Act has for 35 years provided a
mechanism for many tribes to successfully develop capacity for
government-building activities. I thank the Committee for holding this
important hearing on advancing the Federal-Tribal relationship through
Self-Governance and Self-Determination. On behalf of the Maniilaq
Association, including our twelve constituent villages and their
members, I sincerely hope that this Congress will address the chronic
underfunding of contract support costs and village built clinics,
address the timing of IHS appropriations, and move forward with efforts
to amend Title IV of the ISDEAA and to extend Title V Self-Governance
to non-IHS programs within the DHHS. I am ready to respond to any
questions from the Committee.
Thank you.
Senator Akaka. Thank you very much for your testimony,
President Erlich.
Secretary Head, please proceed with your statement.
STATEMENT OF CHARLES HEAD, SECRETARY OF STATE, CHEROKEE NATION
Mr. Head. Thank you Mr. Chairman, Ms. Murkowski. My name is
Charles Head, Secretary of State for the Cherokee Nation, and I
am here representing Principal Chief Bill John Baker and the
Cherokee Nation. I thank you for the opportunity to share some
information about Cherokee Nation and our self-governance
programs.
In 1990, I was working for the Bureau of Indian Affairs and
sat across the table from the Cherokee Nation as the first
compact was negotiated. In Fiscal Year 1991, I went to work for
the Cherokee Nation, became the Tribe's first self-governance
coordinator, and participated fully in the implementation of
the development of self-governance and the implementation of
the program for more than 10 years.
I have looked at this program as the self-governance
coordinator, as the Chief Financial Officer for the Tribe, and
now as the Secretary of State and I fully support self-
governance and what it brings to the Tribes.
Cherokee Nation is one of the largest Tribes in the United
States. We are also one of the largest employers in
Northeastern Oklahoma. We indirectly support more than 13,000
jobs. The Tribe directly is responsible for 9,000 jobs, both in
our businesses and in our government operations.
Our healthcare program, last year we had, in our eight
rural health clinics, completed more than 1.1 million patient
visits. We operate W.W. Hastings Indian Hospital in Tahlequah,
Oklahoma, a hospital designed for 30,000 to 60,000 patient
visits. Last year, we had 300,000 patient visits. We are able
to operate these health services with IHS funding, with third-
party collections and with dollars added from our Tribal
businesses.
We operate, through our Department of Interior Self-
Governance Program, law enforcement, real estate services,
various trust programs and education programs. We operate
Sequoyah High School which was a BIA boarding school that was
low performing and inadequate and now is State chartered, fully
certified and we handle, we serve more than 400 students each
and every year, grades 8 through 12, and from more than 30
Tribes, students from more than 30 different Tribes.
One of the two major areas of concern for the Cherokee
Nation is contract support costs, inadequate funding. The
Cherokee Nation has participated in, and initially filed a
lawsuit against, the Indian Health Services through a Contracts
Disputes Act claim which was proven by the Supreme Court and
then, in later years, the Ramah Navajo case is a similar case
that shows that Indian Health Service and BIA are not
adequately funding the contract support costs.
Contract support costs are administrative costs that each
and every business or contractor must pay to administer these
programs. And when the Federal Government does not supply
adequate funding, direct care dollars must be used to support
the operation of these programs. Our contract support claims
for this latest round, from 2005 to current for the Indian
Health Service, is nearly $50 million and it is almost $1
million for the Department of the Interior. Those are direct
program service dollars that we were not able to provide for
services to our people.
We ask for your support and help in promoting that the
Indian Health Service and the Department of Interior quickly
come together with Tribes and settle these claims so that we
can bring in those Tribal, these dollars back into the Tribal
coffers to provide services for our people.
The second area of concern is sequestration, which you
mentioned earlier, Mr. Chairman. I have a report here that I
would like to provide to the Committee to be put into the
record. This is a report developed by our treasurer and it is
providing information on what these cuts could mean to each of
our program areas for each of the Federal agencies. It is an
example and it is based on a 10 percent cut, not the 8.2 that
it is in the law. But if it pleases the Chair, I would like to
provide this information, this report, which will provide you
with some real world examples for what these, for the job cuts
and the cuts in services that this sequestration could have on
the operation of our Tribe.
Lastly, Mr. Chairman, I would like to invite the Committee
and your staff to visit the Cherokee Nation, to see what we do
with our dollars that are provided in these important self-
governance programs.
And lastly, I would like to say that the Cherokee Nation
strongly supports self-governance for Native Hawaiians and if
there is any technical assistance in the area of self-
governance that we can provide, all you have go to do is ask.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Head follows:]
Prepared Statement of Charles Head, Secretary of State, Cherokee Nation
Introduction
Chairman Akaka, Vice Chairman Barrasso and members of the
Committee, thank you for convening this hearing on ``Advancing the
Federal-Tribal Relationship through Self-Governance and Self-
Determination.'' I am Charles Head, Cherokee Nation Secretary of State
and on behalf of the Cherokee Nation, I am here to ensure the United
States' trust responsibility is maintained and the successful policy of
Self-Governance continues to be strengthened so tribes can better and
more efficiently serve their citizens.
Cherokee Nation was one of the first tribes to enter into a treaty
with the United States. In that tradition, the Cherokee Nation executed
a self-determination compact under Title III of the Indian Self-
Determination and Education Assistance Act (ISDEA). This gave the tribe
more authority to administer its own programs and essential services.
In just two decades, Cherokee Nation has taken over the administration
of several Bureau of Indian Affairs (BIA) and Indian Health Service
(IHS) programs.
ISDEA is a powerful mechanism that provides tribes with the
opportunity to administer essential governmental services and engage in
local economic and resource development that is culturally appropriate
and reflects the local population's needs. The Self-Governance program
is a model of efficiency for the Federal Government, reducing its
costly administrative burdens. But rather than rewarding efficiency and
quality services, implementation of the Budget Control Act in early
2013, specifically the sequestration provision, threatens to cut
tribally administered programs by 8.2 percent.
While Self-Governance falls under discretionary funding, it must be
understood that funding tribal programs is the fulfillment of treaty
obligations between tribes and the United States. During this period of
fiscal constraints, it is prudent to view the Self-Governance program
as an effective administrative model deserving of support, rather than
cutting funding to a program that is a solution to the Federal
Government's current economic challenges.
Self-governance builds tribal capacity. Cherokee Nation is
currently the largest employer in northeastern Oklahoma and has an
economic impact of more than $1.06 billion on the State's output level,
including $401 million in State income impacts. Cherokee Nation
supports 13,527 jobs in a predominantly under-developed, rural region
of Oklahoma. While 3,250 people are employed in the Nation's
government, an ever-increasing number of people are employed in the
Nation's diverse portfolio of businesses, which include the
hospitality, healthcare, aerospace, and technology sectors.
Although the combined revenue streams from the Tribe's diverse
business operations help fund essential government services that expand
economic development and job growth in Oklahoma, there must also be
adequate funding for IHS and BIA self-governance contracts.
Indian Health Service
Under a Self-Governance contract with the Department of Health and
Human Services, the Cherokee Nation constructs and maintains waterlines
and improves sanitary services throughout our region. Furthermore, the
Tribe operates a sophisticated network of eight rural outpatient health
centers that provide Native People with primary medical care, dental
service, optometry, radiology, mammography, behavioral health promotion
and disease prevention, and a public health nursing program.
In addition to these services, the Cherokee Nation operates W.W.
Hastings Indian Hospital in Tahlequah, Oklahoma. Hastings is a 60-bed
facility offering outpatient and ancillary services with over 300,000
outpatient visits each year and more than 335,000 prescriptions filled
annually. Full funding is required to continue this successful
partnership in fulfillment of the Unites States' trust obligations.
Additionally, Cherokee Nation requests that this Committee work with
all of Congress to ensure that IHS is exempt from future reductions
during the appropriations process as well as sequestration that is set
to go into effect in early 2013.
Bureau of Indian Affairs
Cherokee Nation also contracts with the Department of Interior to
administer a wide array of federal programs serving American Indians.
Full federal funding is crucial for continued administration of social
services, child wellness programs, child abuse services, adult and
higher education, housing improvement, law enforcement service, road
and bridge construction, planning and maintenance, forestry and real
estate programs, and Johnson O'Malley education programs.
Self-Governance Education Services
One of the best examples of what happens when Native People
administer their own programs is Sequoyah Schools system. In 1985,
Cherokee Nation gained control of Sequoyah Schools, a former
underperforming BIA boarding school. After years of tribal control,
Sequoyah is now regionally and state accredited, consistently meets
Adequate Yearly Progress goals and is flourishing. The Campus covers
over 90 acres and houses more than 400 students in grades 7-12
representing 42 Tribes. Furthermore, in the 2011 and 2012 school years,
ten Sequoyah Schools' seniors were named Gates Millennium Scholars by
the Bill and Melinda Gates Foundation. This honor entitles the students
to one of the most prestigious scholarships in the United States,
including college tuition, books, fees, and room and board for up to
eight years worth of higher education.
Cherokee Nation and other tribes better understand how to educate
our children and provide cultural curricula that revitalizes and
protects language and tribal history. The School also creates an
academic environment that mirrors college preparatory schools by
utilizing an advanced curriculum and using data collection to track
student progress and school performance, which allows the
administrators to quickly address any deficiencies or problems that
develop. In 2010, nearly 30 million dollars in tribal money went to
fund Cherokee services like education programs. However, the Tribe is
still reliant on federal grants and funding for many programs.
Insufficient funding for contract support costs, and potentially
sequestration, could force the reallocation of tribal funds, from
successful services like education, to cover the shortfalls in other
tribally-administered programs.
Tribal Priority Allocations (TPA)
We join other Self-Governance Tribes in requesting that this
Committee guarantees funding increases for the fundamental services
provided under the broad category of TPA. Of the 566 federally-
recognized Tribes, 235 Tribes manage their own affairs under Self-
Governance agreements with the BIA. Although these tribes account for
42 percent of the federally-recognized tribes, they received roughly
only 15 percent of the BIA budget, which bears the responsibility for
providing services to all federally-recognized Tribes.
The President's FY 2013 budget includes $2.5 billion for BIA, which
is $4.6 million or 0.2 percent below the FY 2012 enacted level. While
this is basically level with FY 2012's Budget, any decrease strains
tribal governments. Further, the budget proposes a total of $897.4
million in Tribal Priority Allocations and to advance the policy of
Self-Governance, we ask that Congress protects these funds as the
budget process proceeds.
Contract Support Costs (CSC)
CSCs for ISDEA contractors cover the independently-audited fixed
overhead costs that an ISDEA contractor must incur to operate an agency
activity, like annual audits and payroll administration. These costs
are equivalent to ``general and administrative costs'' required by
government procurement contractors, which are generally set by indirect
cost rates issued by the Federal Government.
Because CSCs are fixed costs that a contractor must incur, tribes
are required to either (1) reduce funds budgeted for critical
healthcare, education and other services under contract to cover the
shortfall; (2) divert tribal funds to subsidize the federal contract
(when such tribal funds are available); or (3) use a combination of
these two approaches. For example, every $1 million that the Cherokee
Nation must divert from direct patient care to cover a contract support
costs shortfall, the Cherokee Nation health system must forego 5,800
patient visits.
While the President's FY 2013 Budget request for IHS is $4.42
billion--an increase of $115.9 million over the FY 2012 enacted level--
IHS sees only a very modest $5 million increase in IHS funding for
contract support. The Cherokee Nation appreciates the increase, but it
is less than a one percent increase over the FY 2012 enacted level.
Although IHS has been reluctant to release shortfall reports, the
National Tribal Contract Support Cost Coalition projects a CSC
requirement of $575.8 million for Indian Health Services. However IHS
has only requested $476.4 million, which would leave a shortfall of
nearly $100 million. This shortfall would substantially impact Cherokee
Nation, which, like other tribes across the United States, operates
replacement or joint-venture facilities throughout our tribal
jurisdiction.
Fortunately in June of 2012, the House Appropriations Committee
approved the Fiscal Year 2013 Interior-Environment Appropriations
Funding Bill, which would almost fully fund contract support costs.
This Appropriations Bill would increase the IHS contract support cost
line by roughly $70 million to $546 million, and would increase the BIA
line by $8 million to $228 million--the BIA projects a FY 2013
requirement of $242 million. Cherokee Nation is appreciative of these
substantial increases in the midst of constrained budgets and
sequestration's planned implementation in early 2013.
Because CSCs are federal contractual obligations with tribes,
Cherokee Nation hopes that this Committee ensures the Senate will work
with the House to protect those increased IHS and BIA budgets over the
President's request. Shortfalls lead to reduced services and jobs for
our people and the State of Oklahoma. Therefore, Cherokee Nation
supports the House Appropriations language that provides near-full
funding for CSCs and requests that the Senate uphold the increases.
Ramah Navajo v. Salazar, 132 S. Ct. 2181 (2012)
In June of 2012, tribes achieved a huge victory for tribal self-
determination and Self-Governance contracts with Ramah v. Salazar. In
that case, the Supreme Court held that BIA had failed to fully fund
CSCs between the years of 1994-2001. Previously in Cherokee Nation v.
Leavitt (2005), the Supreme Court held that the United States is liable
to pay full contract support costs where IHS failed to fully fund them.
These decisions put tribal contractual agreements on the same level as
all other federal contractual agreements, as they should have been all
along.
Due to the ruling in Ramah, there will now be hundreds of tribes
filing thousands of claims to recover CSC shortfall funds. Recently,
Chickasaw Nation reached a roughly $7 million settlement regarding a
small portion of their filed claims. This relatively small claim took
seven years. This is unacceptable. Therefore, I ask that this Committee
works with the rest of Congress to ensure federal agencies are
committed to adopting and utilizing a method that guarantees the fast
processing of future claims.
Additionally, Congress should actively ensure that no technical
barriers, such as statutes of limitation or claim presentment
requirements, create agency obstructions. The claims process must also
increase agency transparency. Finally, because of the lengthy claims
process, the United States could more efficiently resolve the matter by
simply negotiating a settlement of all CSC underpayments suffered by
all tribal contractors from 1994 to present.
Conclusion
In conclusion, Cherokee Nation is committed to providing federal
services and direct, local-level programs, including job creation,
education, health and law enforcement services. Self-Governance is an
efficient model that utilizes federal dollars better than what the U.S.
Government could otherwise provide to tribal citizens. The Federal
Government's current fiscal situation, contract support cost
shortfalls, and the pending threat of sequestration's across-the-board
budget cuts should not affect Cherokee Nation's self-determination nor
negate the United States' trust and treaty responsibilities. This is
especially true when the program often underfunded is a shining example
of better providing services without bureaucratic entanglements. Thank
you for your continued support and for the opportunity to testify on
``Advancing the Federal-Tribal Relationship through Self-Governance and
Self-Determination.'' I will happily answer any questions you may have.
Attachment
Senator Akaka. Thank you very much, Secretary Head, for
your testimony.
Ms. Noelani Kalipi, will you please proceed with your
testimony.
STATEMENT OF D. NOELANI KALIPI, PRESIDENT, TILEAF GROUP
Ms. Kalipi. Aloha, Chairman and Senator Murkowski.
Senator Akaka. Aloha.
Ms. Kalipi. Thank you for providing me with the opportunity
to testify this afternoon. My name is Noelani Kalipi and I
serve as the President for TiLeaf Group, a national advocacy
firm that works with Native and non-Native organizations on
projects, services and programs to contribute to the well-being
of Native communities.
The Federal policy of self-governance and self-
determination empowers Native peoples because it recognizes
first in policy, and more importantly in practice, the right of
Native peoples to govern themselves and their resources.
The success of these policies is evidenced by the steady
growth of sustained economic development across the Nation by
Native governments. This success is largely due to the
accountability provided by self-rule. Native leaders making
decisions about Native resources have the biggest stake in the
outcomes of these decisions because the resources are theirs
and because they must live with the consequences of their
actions.
Many Native governments are at different points of self-
rule within the Federal framework. What remains fundamental,
however, is their access to the Federal policies that empower
them to engage in self-governance and self-determination. As a
matter of parity, Native Hawaiians who have been repeatedly
recognized by the United States as Hawaii's indigenous peoples
should have access to the Federal policies of self-governance
and self-determination through a federally-recognized
government-to-government relationship.
Thank you, Mr. Chairman and Members of this Committee, for
voting to approve the substitute amendment to S. 675, the
Native Hawaiian Government Reorganization Act of 2012, which
provides a process for the reorganization of the Native
Hawaiian government for the purposes of a federally-recognized
government-to-government relationship with the United States.
As a condition of Statehood, the State of Hawaii agreed to
administer the Hawaiian Homelands Trust that you referred to,
Mr. Chairman, in your statement, a Federal land trust that was
created by Congress in 1921 to rehabilitate Native Hawaiians.
The State of Hawaii created an agency to fulfill the role of
administrating the trust, and this has resulted in the State
agency managing lands on behalf of Native Hawaiians. In
addition, in Hawaii non-profits provide a number of community
services on behalf of Native Hawaiians.
The State and non-profit framework, while well-intentioned,
does not allow for true self-governance and self-determination
by Native Hawaiians. Instead, it has resulted in the State of
Hawaii managing Native lands and resources on behalf of Native
Hawaiians in drastic contrast to the self-rule afforded to
other Native peoples through the Federal policy of self-
governance and self-determination.
Mr. Chairman, as a Native people we want to, and we need
to, manage our own resources. It is in our best interests and
in the best interests of the State of Hawaii and the United
States.
The State of Hawaii continues to support greater self-
governance for Native Hawaiians. As recently as last year, the
Hawaii State Legislature passed, and the governor enacted into
law, Act 195, which established a Native Hawaiian Roll
Commission. The legislation was unanimously passed by the
State's House of Representatives and was approved by 23 of 25
votes in the Hawaii State Senate. Act 195 serves as clear
evidence of the State of Hawaii's recognition of, and continued
support for, self-governance and self-determination by Native
Hawaiians.
S. 675 reaffirms the legal and political relationship
between Native Hawaiians and the United States as is consistent
with the recommendations made by the Departments of the
Interior and Justice in 2000 as part of the reconciliation
process that was committed to by the United States in Public
Law 103-150, the Apology Resolution. S. 675 is important to the
Federal-Tribal relationship, Mr. Chairman, because it provides
parity in Federal policies addressing our Nation's indigenous
peoples.
The terms Indian and Tribe are terms of art that refer to
Native peoples as individuals or collectively. There are
hundreds of different Native groups with different languages,
cultures and traditions who are indigenous to the United
States. The fact that they are from different regions of the
United States and speak different languages does not change the
fact that they are indigenous peoples with whom the United
States has executed treaties, took lands into trust on their
behalf, and has a special responsibility to promote their
welfare through the Federal policy of self-governance and self-
determination.
The reference to Native groups as Indians or Tribes is a
reflection of their status as indigenous peoples. S. 675
provides parity by treating Native Hawaiians equally with the
same terminology under Federal law.
Mr. Chairman, thank you and your Committee for your
tireless efforts over the tenure of your career in the United
States Congress to support the Federal-Tribal relationship.
Whether it has been through your support for the Native 8(a)
Program, which is one of the few effective Federal policy
working to promote economic development in Native communities,
or in financial literacy and access to capital for Native
peoples through new market tax credits, or helping to educate
policymakers about the importance of the Federal trust
responsibility and its foundation for so many Federal policies
involving Native peoples, your efforts have created
opportunities for sustained economic development for our
Nation's first peoples.
Your mere presence as a Native Hawaiian Chairman of this
distinguished Committee is a source of inspiration for our
youth and great pride for all Native peoples. We thank you and
pledge to ensure that your legacy will never be forgotten.
Mahalo.
[The prepared statement of Ms. Kalipi follows:]
Prepared Statement of D. Noelani Kalipi, President, TiLeaf Group
Aloha Chairman Akaka, Vice-Chairman Barrasso and Distinguished
Members of the Senate Committee on Indian Affairs. Thank you for
providing me with the opportunity to testify this afternoon.
My name is D. Noelani Kalipi and I serve as the President for
TiLeaf Group, a native social enterprise that works with native and
non-native companies and organizations focused on projects, services
and programs that contribute to the well-being of native communities. A
substantial portion of our activity is focused on community-based
economic development and empowerment in native communities across the
nation.
The federal policy of self-governance and self-determination
empowers native peoples because it recognizes in policy and in practice
the right of native peoples to govern themselves and their resources.
The success of these policies is evidenced by the steady growth of
sustained economic development across the nation among native
governments. As described by Stephen Cornell and Joseph Kalt in
reference to impoverished Indian nations:
``. . . a growing number of those nations have broken out of
the prevailing pattern of poverty. They have moved aggressively
to take control of their futures and rebuild their nations,
rewriting constitutions, reshaping economies, and
reinvigorating Indigenous communities, cultures, and families.
Today they are creating sustainable, self-determined societies
that work in all dimensions--economic, social and political.''
\1\
---------------------------------------------------------------------------
\1\ Cornell, Stephen and Kalt, Joseph P., ``Two Approaches to the
Development of Native Nations, One Works, the Other Doesn't,''
Rebuilding Native Nations: Strategies for Governance and Development,
2007, p.6.
Accountability is a vital element in the success of the federal
policy of self-governance and self-determination. When given the
opportunity to self-govern, native decision makers are held accountable
for their choices and their consequences--both good and bad. According
to Cornell and Kalt, this accountability makes for more quality
decisions and results in Native nations being ``better decision makers
about their own affairs, resources, and futures because they have the
largest stake in the outcomes.'' \2\
---------------------------------------------------------------------------
\2\ Id., p. 21.
---------------------------------------------------------------------------
Native governments are at different points in the continuum of
self-governance and self-determination. What remains fundamental,
however, is their access to the federal policy that empowers them to
engage in self-governance and self-determination. Mr. Chairman, thank
you for your tireless effort over the past thirteen years to extend
these policies to Native Hawaiians, who have been repeatedly recognized
by the United States as Hawaii's indigenous peoples. S. 675, the Native
Hawaiian Government Reorganization Act of 2012, provides the process
for the extension of the federal policy of self-governance and self-
determination through a federally recognized government-to-government
relationship between Native Hawaiians and the United States.
Through your leadership, many of us in Hawaii better understand and
appreciate the fundamental tools that these federal policies provide.
Native Hawaiians are already recognized by the United States as
Hawaii's indigenous peoples, as evidenced by the 150-plus federal
statutes addressing the conditions of Native Hawaiians. As our history
has demonstrated, without access to the federal framework of self-
governance and self-determination, however, Native Hawaiians don't have
the same tools available to manage and control their resources.
Enacting S. 675 provides the United States will the ability to better
fulfill its responsibilities to Native Hawaiians as its indigenous
peoples.
In the absence of a federally recognized government-to-government
relationship between the United States and Native Hawaiians, the State
of Hawaii has created mechanisms to help manage the Native Hawaiian
land trusts and resources. This effort, while well-intentioned, does
not allow for self-governance and self-determination by Native
Hawaiians. Instead, it has resulted in the State of Hawaii managing
native lands and resources on behalf of Native Hawaiians. Native
Hawaiians, as a people, want to and need to manage their own resources.
The Hawaiian Homes Commission Act of 1920 (HHCA) was enacted by the
U.S. Congress in 1921 and set aside 200,000 acres of land for
homesteading, agricultural and pastoral use by Native Hawaiians. The
Act was based on prevailing federal policies towards Native peoples at
the turn of the century which focused on assimilation and allotment.
The Dawes Act and Burke Act focused on providing eligible Indians with
allotments of lands for residential, ranching, and agricultural
purposes. The general concept behind this policy was to return Native
people to the land. The Hawaiian Homes Commission Act was modeled after
these Indian General Allotment Acts as it sought to ``rehabilitate''
the Native Hawaiian people by placing them back on their ancestral
lands. Learning from tragic circumstances that resulted in American
Indians losing some of their lands, the HHCA created a federal land
trust that provided for 99-year leases to qualified Native Hawaiians,
thereby ensuring the longevity of the trust lands to benefit the Native
Hawaiian people.
In 1959, when Hawaii entered into statehood, prevailing federal
policies towards Natives were to delegate authorities over Natives to
state governments. As a condition of Statehood, therefore, the State of
Hawaii agreed to administer the Hawaiian Home Lands trust. Section 4 of
the Hawaii Admissions Act (P.L. 86-3, 73 Stat 4) specifically provides
that ``As a compact with the United States relating to the management
and disposition of the Hawaiian home lands, the Hawaiian Homes
Commission Act, 1920, as amended, shall be adopted as a provision of
the Constitution of said State . . . subject to amendment or repeal
only with the consent of the United States . . .''. The Federal
Government retains oversight of the Hawaiian Homes Commission Act to
ensure that the original intent of the HHCA is maintained; clear
evidence of its effort to retain its trust responsibility towards
Hawaii's indigenous peoples.
The State of Hawaii established the Department of Hawaiian Home
Lands (DHHL) in 1961 to fulfill its mandate to administer the Hawaiian
Home Lands trust. DHHL is governed by nine Commissioners who are
appointed by the Governor. The DHHL Director serves as the Chairman of
the Hawaiian Homes Commission, and also as a member of the Governor's
cabinet.
Beneficiaries of the HHCA govern themselves through the existence
of beneficiary organizations called homestead community associations.
These organizations, which have existed as long as homestead
communities, have representative leadership through democratically
elected processes for each homestead area. Homestead associations are
important partners that help the State of Hawaii to fulfill its
responsibilities under the HHCA because they know their communities and
lands, and are best able to engage their communities and to communicate
with state and federal policymakers to address issues of priority. If
one were to analogize the state framework to the federal framework,
DHHL is a managing agency similar to the Bureau of Indian Affairs, and
the homestead community organizations are the tribes--governing
entities at the community level who work to address their community's
needs and resources.
The difference here is that DHHL is a state agency whose inherent
responsibility is to the state rather than to the beneficiaries. The
strength of the relationships between DHHL and the beneficiaries and
homestead community associations are largely based on the state
appointed officials who run the agency. In certain situations, there
can be a conflict in terms of what is in the best interest of the State
versus what is in the best interest of the beneficiaries and the
administration of the Hawaiian Home Lands trust. The current framework
sometimes puts Commissioners in the awkward position of having the
responsibility to make decisions in the best interest of the Hawaiian
Home Lands trust while facing the reality that they are political
appointees of the Governor and sometimes advised to make decisions in
terms of the best interests of the State of Hawaii. These situations
best illustrate the challenges faced by Native Hawaiians and the
consequences of not being afforded the opportunity to federal policies
that encourage and empower native peoples to manage their lands and
resources within the federal framework of self-governance and self-
determination.
As another condition of Statehood, the State of Hawaii took title
to 1.4 million acres of land that had been ceded to the United States
by the Republic of Hawaii upon annexation to the United States. Section
5(f) of the Hawaii State Admissions Act provides that revenues from
these lands shall be utilized for five purposes, one of which is for
the betterment of native Hawaiians. In 1978, Hawaii held a
Constitutional Convention. The constitutional convention delegates
voted to establish the Office of Hawaiian Affairs (OHA) as a means to
utilize the portion of the said revenues from the ceded lands for the
betterment of Native Hawaiians. This action was taken in support of
Native Hawaiians and their lands and resources, utilizing the tools
available at the state level. The Hawaii electorate ratified the
delegates' decision to create OHA, reflecting the widespread view among
Hawaii residents that its indigenous peoples should have a mechanism to
manage Native Hawaiian resources. The agency is governed by a nine
member Board of Trustees which elected statewide by all Hawaii voters.
While Native Hawaiians have been elected to govern OHA and are
appointed by the Governor to serve on the Hawaiian Homes Commission,
both OHA and DHHL are state agencies. While based on good intentions
and best efforts, the management of Native Hawaiian resources within
the state framework does not result in self-governance and self-
determination by Native Hawaiians, nor does it result in Native
Hawaiian control and management of resources--a fundamental element of
self-rule under the federal framework. The enactment of S. 675, the
Native Hawaiian Government Reorganization Act of 2012, would address
this inequity and provide for Native Hawaiian control, management and
accountability of native lands and resources, thereby providing parity
in federal policies towards American Indians, Alaska Natives and Native
Hawaiians.
The State of Hawaii continues to support greater self-governance
for Native Hawaiians. As recently as 2011, the Hawaii State Legislature
passed and the Governor enacted into law Act 195 which establishes a
Native Hawaiian Roll Commission. Act 195 recognizes the Native Hawaiian
people as the only indigenous, aboriginal population of Hawaii and
expresses the State's support for the continuing development of the
reorganization of the Native Hawaiian governing entity for a federally
recognized government-to-government relationship with the United
States. The legislation was unanimously passed by the State's House of
Representatives and was approved by 23 of 25 votes in the Hawaii State
Senate.
Act 195 serves as clear evidence of the State of Hawaii's
recognition of and continued support for self-governance and self-
determination of the Native Hawaiian people. Thank you, Members of this
Committee, for modifying S. 675 last week in your consideration of the
substitute amendment to S. 675, to reflect the State of Hawaii's action
in establishing the Native Hawaiian Roll Commission in support of
increased self-governance and self-determination for Native Hawaiians.
In 1993, President Clinton signed P.L. 103-150, commonly referred
to as the ``Apology Resolution'' into law. The Apology Resolution
apologizes to Native Hawaiians for the participation of the United
States in the overthrow of the Kingdom of Hawaii and commits the United
States to a process of reconciliation with Native Hawaiians. In 1999,
representatives of the Departments of the Interior and Justice traveled
to Hawaii to begin the reconciliation process, which is a continuing
dialogue between federal representatives and Native Hawaiians to
discuss longstanding issues resulting from the overthrow of the Kingdom
of Hawaii.
Public meetings were held on most islands and representatives
visited a number of sites including Native Hawaiian charter and
language immersion schools, educational facilities, health care
facilities, cultural centers, hula halau, native fish ponds and
Hawaiian homestead communities and projects. Federal representatives
concluded Native Hawaiians have maintained a distinct community and
certain government structures since the overthrow of the Kingdom of
Hawaii and that Native Hawaiians continuously tried to find ways to
manage their resources and to address the needs of their communities
through self-governance and self-determination.
As a result of their consultations in Hawaii, the Departments of
the Interior and Justice published a report, ``From Mauka to Makai: The
River of Justice Must Flow Freely,'' in 2000, which concluded:
``that the Native Hawaiian people continue to maintain a
distinct community and certain governmental structures and they
desire to increase their control over their own affairs and
institutions. As a matter of justice and equity, this Report
recommends that the Native Hawaiian people should have self-
determination over their own affairs within the framework of
Federal law, as do Native American tribes.'' \3\
---------------------------------------------------------------------------
\3\ Report published by the Department of the Interior and the
Department of Justice, ``Mauka to Makai: The River of Justice Must Flow
Freely,'' (2000) p. 4
The report references actions taken by United States to recognize
the rights and promote the welfare of Native Hawaiians as indigenous
peoples. It recommends that in an effort to safeguard and enhance
Native Hawaiian self-determination over their lands, cultural
resources, and internal affairs, Congress should enact legislation ``to
clarify Native Hawaiians' political status and to create a framework
for recognizing a government-to-government relationship with a
representative Native Hawaiian governing body.'' \4\
---------------------------------------------------------------------------
\4\ Id.
---------------------------------------------------------------------------
S. 675 reaffirms the legal and political relationship between
Native Hawaiians and the United States by providing a process for the
reorganization of the Native Hawaiian government for the purposes of a
government-to-government relationship. The bill is consistent with the
recommendations made by the Departments of the Interior and Justice as
part of the reconciliation process more than a decade ago. S. 675 is
important to the Federal-Tribal relationship, Mr. Chairman, because it
provides parity in federal policies addressing our nation's indigenous
peoples.
The terms ``Indian'' and ``Tribe'' are terms of art that refer to
native peoples as individuals, ``Indian'' or collectively, ``Tribes.''
There are hundreds of different native groups with different languages,
cultures, and traditions, who are indigenous to the United States. The
fact that they are from different regions of the United States and
speak different languages does not change the fact that they are
indigenous peoples with whom the United States executed treaties, took
lands into trust on their behalf, and has a special responsibility to
promote their welfare through the federal policy of self-governance and
self-determination. The reference to native groups as Indians or Tribes
is a reflection of their status as indigenous peoples.
S. 675 provides parity by treating Native Hawaiians equally with
the same terminology under federal law, thereby ensuring that American
Indians, Alaska Natives and Native Hawaiians are empowered to the same
extent to preserve and perpetuate their cultures and languages and to
address the needs of their communities under the federal policy of
self-governance and self-determination. By extending federal
recognition of a government-to-government relationship to Native
Hawaiians and providing access to the same laws as other Indian Tribes,
S. 675 provides the parity recommended as part of the reconciliation
process.
Mr. Chairman, thank you and your Committee for your tireless
efforts over the tenure of your career in the United States Congress to
support the Federal-Tribal relationship through self-governance and
self-determination. Whether it has been through your support for the
Native 8(a) program which is one of the few effective federal policies
working to promote economic development in native communities, or
financial literacy and access to capital for native peoples through New
Market Tax Credits, or helping to educate policymakers about the
importance of the federal trust responsibility and its foundation for
so many federal policies involving native peoples, your efforts have
created opportunities for sustained economic development for this
Nation's First Peoples. Your mere presence as the Native Hawaiian
Chairman of this distinguished committee is a source of inspiration for
our youth and great pride for all native peoples. We thank you and
pledge to ensure that your legacy will never be forgotten.
Senator Akaka. Mahalo. Thank you very much for your
testimony.
Mr. Erlich, President of the Maniilaq Native Association,
in your testimony you stated that you have been waiting for
years for responses from the DOI regarding information on
compacting programs within non-BIA agencies within the
Department of Interior. Have you received any kind of feedback
from them during that time? And if so, what has it been?
Mr. Erlich. We have, of course, we did work out an
arrangement with the National Park Service. We were really
pleased with that. We have gotten some feedback or response
from the BOM and we are actually beginning to go into pre-
negotiations with them to discuss what we might be able to
partner with or compact with from them. But all the other
agencies, we have not even received a response from. So, no
feedback.
Senator Akaka. This information on compacting programs,
when was the inquiry made?
Mr. Erlich. The first request for PFSAs from the agencies
was about three years ago.
Senator Akaka. Oh, three years. And in some cases you have
had no response?
Mr. Erlich. Yes.
Senator Akaka. Secretary Head, the Cherokee Nation used
self-governance programs to help develop its court system, its
tax code and law enforcement systems. Can you describe the
impact this has had on the daily life of a Cherokee citizen?
Mr. Head. Law enforcement, the law enforcement program
where, it has provided more safety and protection for our
citizens living on Indian land scattered throughout the 14
counties. Our law enforcement program works in concert with,
and we have cross-deputizations with, county and city
governments throughout the 14 counties of the Cherokee Nation.
We actually even have MOUs with the U.S. Marshal's Service and
actually have one of our Cherokee Marshals working full-time on
the U.S. Marshal's Violent Crimes Task Force. Actually, two
weeks one of our marshals, our marshal on that task force
single-handedly captured a murderer that was on the loose in
Tulsa, Oklahoma.
Our court system has provided a sound basis for our
economic development and a forum for disputes that go on
throughout the Cherokee Nation. You may have heard about an
election dispute this last fall and our court system worked
properly. They determined that there were questions. We had
another election and our processes worked. The election was
concluded. Chief Baker is now seated. The controversy is behind
us. We are moving down the road.
But had we not had an adequate court system, it could have
been an ongoing dispute that lasted for years. So, our court
system is working and we fully support it and we are thankful
for the dollars that we have received from the Department of
the Interior for the operation of both of those programs.
Senator Akaka. What effect has this had on tax codes?
Mr. Head. We actually do operate a tax system through our
enterprises that are operated on Tribal and trust properties,
trust and restricted lands. Those dollars are collected through
our enterprises. And we have a Tax Commission which monitors
and operates our, we have a Tax Commission that actually
operates the collection of taxes and ensures that smoke shops
as well as our enterprises pay the appropriate taxes.
Those tax dollars are put into use. We also have a car tag
system and sell automobile tags to Tribal members living within
our jurisdiction. Our Tax Code and our automobile tax system
are negotiated through a tax compact with the State of
Oklahoma. We are currently in negotiations with the State of
Oklahoma and hope to have an agreement, they have positive news
and hope to have our latest compact in place within two to
three weeks. These tax dollars are put into, back into the
coffers of the Tribe and are used to support Tribal programs.
Some of the tax dollars go into the operation of our health
programs. A lot of our car tag dollars go, each year we provide
back to the school systems, the local school systems, operated
by the local entities in our counties. We provide, this last
year we provided almost $4 million back to those school systems
with no strings attached because a lot of our Cherokee citizens
go those local schools.
So, we are using those taxes to support not only our
program operations but to give back to the local and State
governments of Eastern Oklahoma.
Senator Akaka. Thank you very much.
Ms. Kalipi, President of the TiLeaf Group, can you give a
few examples of how community progress and Native Hawaiian
self-determination has been hampered without a government-to-
government relationship?
Ms. Kalipi. Thank you, Senator. I think the bottom line in
terms of community examples is the fact that within the current
framework that we operate, without the Federal Government-to-
government relationship, Native Hawaiians are unable to
exercise self-rule and are unable to manage their resources. A
clear example is, for example, the Department of Hawaiian Home
Lands which, as a condition of Statehood, the State agreed to
administer the Federal Hawaiian Homelands Trust. It has created
a State agency, the Department of Hawaiian Home Lands. The
Department commissioners are, the Hawaiian Homes Commission are
appointed by our governor and have a responsibility to
administer the trust. At the same time, their director, their
chairman, is a member of the governor's cabinet.
While there is great intention to manage these resources on
behalf of Native Hawaiians, at the end of the day the resources
are being managed by the State and their loyalties are often to
the State. And there are little means for the Native Hawaiians
who are the beneficiaries to effectively hold these officials
accountable.
That is one example. Another example is, at the community
level we have a lot of services provided by non-profits and, in
a similar way, there is a lack of effective coordination of
services because we have a lot of different entities trying to
work on behalf of Native Hawaiians and within Native Hawaiian
communities.
So, the bottom line is that without a government-to-
government relationship, we do not have, and we are challenged
in how we coordinate our services. A government-to-government
relationship would make things much more effective and would
allow us to manage our resources in a way that better meets the
needs of our people.
Senator Akaka. Thank you very much for your answers here.
I would like to call now on our favorite from Alaska,
Senator Murkowski, for any questions or statement she would
like to make, too.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Well, Mr. Chairman, thank you. I
appreciate the opportunity for the hearing. Good discussion.
I welcome my constituent, my friend, Ian Erlich, who, this
is not his first time before the Committee as President of
Maniilaq. He has been here on other occasions and I think has
provided our Committee with good information. His leadership is
greatly respected within the State and I think it is fair to
say that when he comes back here to Washington, that respect is
also accorded. So it is good to welcome him back.
I will also add that in addition to being a leader on the
issues that we are talking about today with self-governance and
self-determination, he has been one who has been working with
us to address the issue of youth suicide, an issue that we hear
about far too often in this Committee where, unfortunately, we
see higher numbers, American Indians, Alaskan Natives takings
their lives at an early age and unfortunately far too many of
our young men. And so, this is an area that Ian has led and I
appreciate all your efforts in that area.
A couple of different issues have been raised. Certainly
the issue of sequestration and, Mr. Chairman, there has been a
lot of discussion around the Capitol here about the impact of
sequestration. And it seems that there has been a pretty
coordinated effort to talk about the impact of sequestration on
the defense side of the budget, I have great concerns about
what that would do to us, but probably less discussion about
what is happening on the discretionary side of the budget and
in those areas where I think we see immediate and perhaps even
dramatic negative impact, in some of the IHS, the BIA accounts.
And if you are talking about an 8.2 percent cut or a 10 percent
cut, it is, it potentially has dramatic negative impact.
You mentioned contract support costs and what that means,
whether you are up in Alaska or part of the Cherokee Nation. I
think our reality is that we have chronically underfunded
contract support costs. We are starting to make a little bit of
headway. I serve as the Ranking Member on the Interior
Subcommittee of the Appropriations Committee and we are making
a very concerted effort to increase the funding for contract
support costs.
But if we move toward sequestration, or that, if the hammer
comes down and sequestration is in place, not only do we not
make any progress, we are going backwards here. And we cannot,
we simply cannot afford to do that. It really abrogates the
contracts, the terms of the deal that we have a responsibility
to respect.
So, I am concerned that as we deal with the fiscal issues,
as we all talk about this impending fiscal cliff that we are
dealing with, we need to understand what it will mean in
certain areas and certainly within IHS, BIA. I am very, very
concerned about what we may see here.
Mr. Erlich, I wanted to ask you specifically about the
Village Built Clinics. We have had a chance to talk about this
in the past, your comments that IHS has been unresponsive to
the requests to fund the VBCs. Can you give me just a little
more detail in terms of what exactly IHS has said in their
conversations to you? You know, how frequent those
conversations have been? It seems to me that there is just kind
of a deaf ear on this issue, so I would like you to explain a
little bit more for the record what you understand IHS'
position has been on this.
Mr. Erlich. Thank you, Senator Murkowski. Well, first of
all in Alaska, the way we negotiate with IHS is we have a
Statewide Tribal Health Compact. And all the cosigners for that
compact agreement out of Alaska have been dealing with this
issue at our annual negotiations with IHS for a number of
years, as well as when we come here to Washington to meet with
the Director for IHS. The issue is raised repeatedly because it
is a real serious problem that the Alaska Tribal health
organizations have to supplement with direct care dollars just
to keep the village clinics operable.
The response that we have received consistently from IHS is
that beyond the funding that is provided for in the hospital
and clinics, there are no other funds available. And so,
because this is an Alaska-specific issue, it is hard to, I
imagine, find a way to fund a line item like Village Built
Clinics while it is sitting under hospital on clinics.
So, we have suggested several times that we put a line item
in the budget for Village Built Clinics, but we have not gotten
a response back from the IHS.
Senator Murkowski. Is it fair to say that they, that IHS,
recognizes that in Alaska you have a got a different situation
up there and that it is important to recognize that there is a
distinction and that it might be appropriate to allow for a
line item there? I know that we are not in the days of earmarks
anymore, but again, you have got one-half of the Tribes in the
Country located in the State of Alaska and we have got a
situation here that is unique to one State. I guess I am asking
if you believe that they understand that there needs to be a
different approach.
Mr. Erlich. I think they understand the issue and I think
you hit the, you got it right on when you talked about
earmarks. I think the agency does not want to appear to be
requesting for something that would be looked on as an earmark.
And so we find ourselves kind of in a Catch 22 where the
agency says you have to go to Congress to get an appropriation
and then, well, oftentimes Congress says we cannot do an
earmark. And so, we are kind of going back and forth and not
making any progress on this issue.
Senator Murkowski. Mr. Chairman, I probably do not need to
tell you about it but not only do we have half the Tribes in
the Country in Alaska, we are a State that is one-fifth the
size of the United States of America. So, it would be as if you
are telling the, I guess it is the Seminoles in Florida, you
are going to be dealing with Tribes out in California and you
are saying well, we cannot do anything because it is an earmark
here.
We are pretty big and our issues are oftentimes a little
bit distinct. And it makes it very difficult when our system
does not allow for us to address from a budget perspective some
of the issues. And I think what we are running up against
within the Village Built Clinics is just further example of
that.
I recognize that these are difficult budget times, but I
think we also need to recognize that we have got to be working
a little bit creatively here. And I am frustrated that we have
not had the folks within the Administration willing to work a
little more creatively on this one.
So, we are not going to give up on it, as I hope that you
will not. But it is a little bit discouraging.
Mr. Chairman, again I thank you for the panel today, for
what they have contributed to us. And I will also note that
this will probably be our last Indian Affairs Committee
meeting. Is that correct, before the end?
And your Chairmanship, sir, has been greatly appreciated. I
appreciate your leadership not only on the Committee but on so
many different issues whether it relates to our indigenous
peoples from Hawaii, Alaska, the American Indians around the
Country, but also all that you do for Federal employees, for
all that you do for our veterans. Your leadership has been
greatly, greatly appreciated and certainly admired. So, thank
you.
Senator Akaka. Thank you very much, Senator Murkowski. It
certainly has been a pleasure for me to work with you for all
these years. And not only with you, but with your family and
your dad as well when he was Senator preceding her. And the
Murkowskis have been such close friends to Millie and me and we
cherish that. And we will always do that. So, please carry my
aloha and love to your family, please. Thank you.
I have just three questions, one for each of you. Mr. Head,
Secretary, you mentioned a recent Supreme Court victory for
Tribes in the Ramah case and how this victory will likely lead
to hundreds of Tribes, and I am asking you this because you
mentioned that recent Supreme Court victory on that Ramah case
and how this victory will likely lead to hundreds of Tribes
filing thousands of claims. In your opinion, would a negotiated
settlement be in the best interests of all parties?
Mr. Head. Absolutely. The process of filing claims, some
Tribes, the Cherokee Nation is a sizeable organization. It
would be easier for us to go back and restructure and pull out
information to adequately support our claims. Other Tribes are
not as large and do not have the capacity that we do and might
have a harder problem being able to do, to go back in time and
recreate that information to support a claim.
Therefore, it would be simpler, less time consuming and
more efficient for a negotiated settlement for all, including
the United States.
Senator Akaka. Well thank you. Thank you for that response.
Ms. Kalipi, can you describe, describe how the existence of
a Native Hawaiian government might facilitate consultation and
enhance ability of everyone to comply with laws like the Native
American Graves Protection and Repatriation Act, or to develop
better programming for the benefit of Native Hawaiian people?
Ms. Kalipi. Thank you, Senator. A Native Hawaiian
government would improve efficiency through coordination of
resources and services. I like to think of it kind of a like a
one-stop shop. Right now, we have a number of different
organizations and as I have referred to State agencies doing
the best that they can for Native Hawaiians under the framework
that we have.
But, in processes such as, for example, the Native American
Graves Repatriation Act, it is difficult for the agencies to
seek input from the community because they have to go to so
many different places. And it is difficult for Native Hawaiians
themselves to figure out how to provide input as well.
When we have a Native Hawaiian government and a place to
coordinate these programs, services and consultations, then
everyone will know how to communicate. So, it improves the
ability to have consultations and it increases efficiency and
coordination of services.
Senator Akaka. Well, thank you very much. Mahalo for your
response. Thank your very much.
I would like to ask the panel this last question. Can you
please discuss the role culture plays when administering
essential government services to Tribal citizens and Native
communities? How important is culture to the exercise of self-
governance?
So, that is my question and you can feel free to expound on
this because I have always felt that culture should be playing
a huge part in what happens to the groups. So, I just want your
, your thoughts on this. Mr. Erlich?
Mr. Erlich. Thank you, Mr. Chairman.
Well, I think that probably the easiest way to summarize,
in my estimation, the importance of culture in administering
Federal programs in place of the Federal Government for Tribal
members is about getting the most bang for your buck. Any time
that programs that are intended to benefit recipients can be
tailored to those recipients specifically you are more likely
to have positive outcomes.
And so, as culture is applied in considering what
techniques to apply to certain programs or what kinds of
benefits, as the culture is applied, it brings about a greater
sense of well-being for the recipients that are receiving those
dollars and it reduces a lot of hard feelings that could come
from maybe some requirements that a program applies towards its
recipients that make little sense to those who are intended to
be receiving assistance.
And so, culture is a way to promote well-being and as you
can apply it to programs and services for the Tribal members,
it promotes a more efficient and effective way of using those
Federal dollars.
Senator Akaka. Thank you very much. Secretary Head?
Mr. Head. Looking at it from a slightly different angle,
Native peoples, at least in our part of the Country, are kind
of shy. And when you and I go out into the local bureaucracy to
take care some business, we run into some hardships and some
difficulties, we stick to it, we stick to our guns and we stay
with it until get an answer.
Native peoples often are rebuffed. When they go to the
State, DHS or different organizations, they run into the
bureaucracy, they will turn around and leave and they might not
go back and they will miss out on very important services.
Native peoples, at least in our part of the Country, do not
have that prohibition when they are dealing with their own
Tribe. They will come in and give me the dickens when they want
me to know about something. So, that is a benefit that our
culture provides is that our Tribal members like to deal with
their own Tribe, with their own peoples. And that improves the
services.
The other part is strict democracy that makes programs work
is that in culture is that our elected officials, if our
elected officials do not cause programs to be run efficiently
to provide services, they do not get reelected. So, that is
another benefit that democracy at the local level provides to
improve services. And that is another reason to support self-
governance.
Senator Akaka. Thank you very much. Ms. Kalipi?
Ms. Kalipi. I think culture is vitally important and
underscores the necessity of self-rule and self-governance. In
order to manage resources and coordinate services
appropriately, you need to be able to understand your people.
Understanding the language, the customs and the traditions of
the people that we serve in their language, in their way, helps
us to assess what their needs are.
It is very difficult to coordinate services and programs if
we do not know how to reach the people that we are trying to
work with and if we do not have effective avenues of them being
able to provide input and decision makers being held
accountable for the way resources are managed and services are
provided.
So, in addition, in the actual provision of the services,
culture plays a vital role in how best to, again, meet the
needs. For example, in healthcare, in some cultures we do
things with our family and so if we go to the doctor we want
our family with us, whereas in other systems you go as an
individual and there is privacy laws. Recognizing the holistic
nature, for example, of having your family with you can help
with the healing process and recognizing Native customs and
alternative forms of healing, for example, like La'au Lapa'au
in Hawaii, can better help that as well.
So culture, if you have a Native government that
understands that and sees the value of that, then the culture
and tradition, language and customs are considered in the
management of the resources and the coordination of services,
and we can better serve our people.
Senator Akaka. Well, thank you very much. You have been
great in responding to all questions and it certainly will be
helpful in the way we approach the future of all our Tribes in
this great Country and in the best interest of the people.
So, I want to thank you very much for your contributions
today and to tell you that this will be helpful to the
Committee.
And I want to take the time to thank our staffs for the
hard work that they do here in the U.S. Senate to bring about
all activities that we have had in the Committee on Indian
Affairs. And I must tell you I am really grateful to all of the
members of the staff and their leaders in bringing this about.
We have made efforts here to listen to the Tribes and to
hear them and hear especially their needs so that we can begin
to help them from that angle. And, of course, I always believe
as you do, that to me culture is like a tree. If you cut the
tree from the roots, which is a culture, you know, there is a
huge loss of something. And that culture or the roots is what
makes it thrive.
And so, we can handle that in different ways as times
change. But it is basic. And I am so glad that we are moving
along as we are and refining the courses that we are taking so
that we can properly help the people we serve.
I want to thank our witnesses for participating in today's
hearing. And as you know, today we discussed the importance of
respecting the inherent sovereignty of Tribes and their ability
to be self-governing and how parity in Federal policy is key.
We have learned that great things can happen when the Federal
Government embraces the Native right of self-determination and
implements programs that empower Native peoples to deliver
Federal service and manage their own affairs.
So please remember the hearing record is open for written
testimony for two weeks to give the opportunity to other
members of this Committee to send any questions they may have
for a hearing like this.
So again, mahalo nui loa, thank you very, very much for
your time and your care and your willingness to help all people
and its great future that there is ahead.
This hearing is adjourned.
[Whereupon, at 4:12 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. W. Ron Allen, Tribal Chairman/CEO, Jamestown
S'Klallam Tribe and Chairman, Self-Governance Advisory Committee,
Department of the Interior
On behalf of the Department of the Interior (DOI) Self-Governance
Advisory Committee (SGAC), I appreciate the opportunity to submit
written testimony for the record. The focus of this testimony is to
provide comments on a very important priority issue for the over 260
DOI Self-Governance Tribes regarding the historical impacts and
calculation of Pay Costs under the Indian Self-Determination and
Education Assistance Act (ISDEAA).
Background on Pay Costs
Under the ISDEAA, Tribes have the authority to assume programs
previously operated and carried out by Federal employees. Most Federal
agencies receive annual increases for Fixed Costs to address
inflationary costs associated with Fringe Benefits and Pay Costs. The
Congress has regularly encouraged the Administration to fully fund
Fixed Costs and to treat and calculate Pay Costs for Tribes operating
under ISDEAA Self-Determination contracts and Self-Governance Compacts
in the same manner as Federal employees.
However, guidance within the Department of the Interior--Indian
Affairs on how Tribal Pay Costs are calculated and which programs are
eligible has not been effectively communicated to the Tribes and is
inconsistent across the Bureau of Indian Affairs (BIA) Regions.
Further, concerns have been expressed by the SGAC about the way Pay
Cost information is collected.
Failure to Fully Fund Pay Costs Severely Impacts Self-Governance Tribes
Historically, Tribes have been disadvantaged because they have
never received full Pay Cost adjustments provided to BIA programs
because the BIA excludes many types of Tribal salaries from their Pay
Cost calculations. Further, since FY 2002, the Administrations' annual
budgets have fully funded Pay Costs just one time (FY 2008). For
Tribes, the impact from the failure to fully fund Pay Costs has been
the loss of critically needed jobs. SGAC estimates that over 900 Tribal
jobs have been lost and approximately 300 more jobs will be permanently
lost on an annual basis if 100 percent Pay Costs are not provided. In
addition, the reduced ability of Tribes to provide competitive salaries
and benefits results in excessive costs of training and frequent staff
turnover. These Tribal losses are being further exacerbated by recent
projections of Pay Cost needs that have been significantly
underestimated.
The SGAC believes that it is inequitable to expect Self-Governance
Tribes to be able to perform compacted functions while receiving less
funding for Fixed and Pay Cost increases than provided to the BIA and
other Federal agencies. Unless these costs are fully funded for all
compacted Tribal salaries, Tribes are forced to reduce services, or
absorb these cuts and eliminate more jobs.
As an example of the financial impact to Tribes from the failure to
fully fund Pay Costs, the Red Lake Band of Chippewa Indians testified
before this Committee in 2006. At that time, they estimated these Pay
Cost cuts resulted in permanent recurring funding reductions of
approximately $600,000-$800,000 annually. Today, their loss stands at
greater than $900,000 each year, and a total loss of $6.6 million since
FY 2001. For all Tribes, the impact of these Pay Cost reductions over
the past 10 years has resulted in severe loss of funding for critical
Self-Governance programs such as law enforcement, housing, education,
natural resources and social and family services to Tribal citizens.
Recommendations to Restore Equitable and Fair Treatment of Pay Costs
for Tribes
Full funding of Tribal Pay Costs has been identified as a top Self-
Governance budget priority for the over 260 Self-Governance Tribes and
has been included in our Annual National Tribal Self-Governance
Strategic Plan for many years. Self-Governance Tribes have worked
actively with other National and Regional organizations as well as with
the Indian Affairs' Tribal Interior Budget Council (TIBC) to advance
this priority.
Conclusion
Pay Cost increases are essential to advance Self-Governance. We
respectfully request this Committee to strongly urge the BIA to
calculate Pay Costs for all compacted Tribal salaries in a consistent
manner across the BIA Regions to include guidance, timeframes, and
methodologies for data collection. There should be coordination between
BIA and the Tribes to identify whom at the Tribal level the data
request should be sent, and adequate time should be provided for data
submissions. Finally, we urge that the Indian Affairs budget submission
should include equitable and full Pay Cost increases for Self
Governance Tribes and include an Appendix that provides a Tribal
breakout of the Pay Cost request.
In closing, we thank the Committee for the opportunity to provide
testimony on this very important issue for Self-Governance Tribes. We
appreciate the inclusion of the testimony and recommendations in the
record for this hearing. Thank you.
______
Prepared Statement of Hon. Leonard Masten, Chairman, Hoopa Valley Tribe
The Hoopa Valley Tribe currently has 3,006 tribal members and the
largest reservation in California, covering approximately 144 square
miles. We were among the first tier of self-governance tribes, having
participated in the demonstration project, and the first in the nation
to have its compact with the United States signed. Through Self-
Governance we have been able to leverage federal dollars to fund our
programs, all of which serve as a means to exercise our sovereignty,
preserve, protect and manage our trust assets, and provide services and
benefits to our members.
We are grateful for the opportunity to provide our views for the
record on advancing the Federal-Tribal Relationship through Self-
Governance and Self-Determination. Our testimony focuses on the
successes of Self-Governance and next steps to further its objectives.
Self-Governance
Background
In setting forth the policy of self-determination, President Nixon
stated:
[We] have turned from the question of whether the Federal
Government has a responsibility to Indians to the question of
how that responsibility can best be fulfilled. We have
concluded that the Indians will get better programs and that
public monies will be more effectively expended if the people
who are most affected by these programs are responsible for
operating them.
President Nixon, Special Message on Indian Affairs, July 8,
1970. He also said that ``The time has come to break decisively
with the past and to create the conditions for a new era in
which the Indian future is determined by Indian acts and Indian
decisions'' and that ``. . . the Federal Government needs
Indian energies and Indian leadership if its assistance is to
be effective in improving the conditions of Indian life.''
Nixon Special Message.
The Indian Self-Determination and Education Assistance Act
(ISDEAA), 25 U.S.C. 450 et seq., allows tribes to contract with the
United States to take over administration of programs carried out by
the Federal Government, facilitating tribes' planning and administering
of programs to govern their lands and provide for their members. The
Tribal Self-Governance Act of 1994, 25 U.S.C. 458aa et seq., allows a
tribe to enter into a compact with the United States for all programs
the tribe assumes. Self-Governance allows tribes more flexibility in
the administration, design and consolidation of programs and in the
allocation of funding among programs. A correct tenet of Self-
Governance is that tribes, themselves, are best-suited to know their
needs and the needs of their members and how best to address them.
Through Self-Governance, Indian Country has experienced many
dynamic and pioneering changes over the last few decades. Self-
Governance tribes have progressively moved to stabilize funding bases,
improve and expand services at the reservation level, and increase
staffing and technical capabilities. Tribes have been able to
strengthen tribal government and establish administrative capability.
Through Self-Governance, tribes have become effective partners with the
United States, working together to positively address and resolve
decades of backlogged trust management issues.
Self-Governance spurred an important transition from bureaucratic
one-size-fits-all, federally-dominated programs to flexible tribally-
designed and administered programs. Tribes are in the best position to
determine what is needed by, and how to provide for, their governments
and members. Prior to Self-Governance, there was a lack of tribal
participation in designing programs and setting agendas. Instead, there
was a reliance on federal-project planning and the federally-developed
programs were not only chronically under-funded, they did not meet the
on-the-ground needs of Indian people. Self-Governance affords tribes
the opportunity to take over the planning and development of these
programs, and since the programs become based on the priorities and
needs of Indian communities as determined by the tribes, they work.
Self-Governance Does Not Diminish the United States' Trust
Responsibility
The United States' trust responsibility is not diminished in any
way in the context of self-governance,
Nothing in this subchapter shall be construed to diminish the
Federal trust responsibility to Indian tribes, individual
Indians, or Indians with trust allotments.
25 U.S.C. 458ff(b) \1\
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\1\ 25 U.S.C. 458aaa-14(b)(Nothing in this subchapter shall be
construed to diminish in any way the trust responsibility of the United
States to Indian tribes and individual Indians that exists under
treaties, Executive Orders or other laws and court decisions.'')
To the contrary, the trust responsibility is carried out in part by
supporting and promoting tribal self-governance. The Secretary
encourages tribal self-governance by entering into funding agreements
with tribes ``consistent with the Federal Government's laws and trust
relationship to and responsibility for the Indian people.'' 25 U.S.C.
---------------------------------------------------------------------------
458cc. As Cohen's Handbook explains:
. . . the law reaffirms Congress's ``commitment to the
maintenance of the Federal Government's unique and continuing
relationship with, and responsibility to individual Indian
tribes and to the Indian people as a whole.'' This commitment
is expressed by support for Indian ``planning, conduct, and
administration'' of ``quality programs'' for Indians.
Felix S. Cohen, Handbook on Federal Indian Law, 1387 (2012
Edition).
The Hoopa Valley Tribe and Self-Governance
Self-Governance has allowed our Tribe the flexibility to design and
manage our own programs. It has been a success for us. This is not to
say that Self-Governance is easy. Self-Governance is government, and
performing the functions of government is hard work. Before Self-
Governance, we contracted most BIA programs under the Indian Self-
Determination Act. Yet, we were frustrated with the short-comings of
93-638 contracting, the inflexibility of BIA-designed programs and the
reality that needs on the ground were still not being met. With this,
we embarked on Self-Governance and have not looked back. In the
beginning, it was hard work to develop our governmental and
administrative structure, but we did, adopting more than seventy
ordinances, stabilizing our funding base, improving our governmental
capabilities and charting a course for our future.
Currently, we manage more than 50 programs which cover the entire
spectrum of issues. Early on, we compacted forestry management and have
been managing our forest lands independently under a forest management
plan that exceeds environmental standards required by federal law and
incorporates our values and priorities. Our Forestry Department has
received exemplary trust evaluations from the BIA's Pacific Regional
Office (PRO). We also own and operate our own logging company and
nursery, and, as a part of our forestry management, we created our own
Wildland Fire Protection Program through which we assumed the Federal
Government's wildland fire functions and services. Our tribal
firefighters meet the same qualification requirements of the United
States Forest Service and the California Division of Forestry. In fact,
our tribal firefighters are dispatched across the country to fight fire
on state, federal and tribal lands. Our program is considered by the
BIA and other tribes to be a model for Indian Country. Additionally,
when we assumed forestry management, we also took over the BIA roads
department, a successful program through which we have been able to
leverage monies from our timber sales, aggregate plant and other
sources with our federal funding to pay for road maintenance and
upgrading.
We have our own Fisheries Department that monitors in-stream
habitat and salmon populations in the Trinity River basin. This is a
well-respected program that contracts with the Bureau of Reclamation
and the Fish and Wildlife Service to carry out river restoration
functions. We are also proud of the fact that Hoopa was the first to
compact health care with the Indian Health Service (IHS) in California,
and now has a hospital, a dental clinic, and the only ambulance service
and emergency room within about 80 miles of the Reservation and the
next nearest hospital. Further, we have a Police Department which
entered into an historic cross-deputization agreement with Humboldt
County to provide comprehensive police protection and law enforcement
on our Reservation. While additional funding is desperately needed,
particularly given the unique situations we face with combating illegal
marijuana cartels on our lands, we are carrying out law enforcement
services.
We also compacted realty from the BIA regional office. Further, we
created a Public Utilities Department that has worked on a Reservation-
wide water system and continues to work on Reservation-wide irrigation
and sewer systems which are needed to serve our community. We also have
our own Tribal Environmental Protection Agency (TEPA) which ensures
that our resource management programs perform in compliance with
Federal EPA regulations. TEPA monitors and enforces air and water
quality standards set by the Tribal Council and is also responsible for
enforcing the Tribe's solid waste ordinance. We also have a housing
authority, a human services department and an education department that
covers preschool to a junior college branch campus.
Benefits of Self-Governance
Programs
Through Self-Governance we provide a range of services to our
people, have spurred economic development on our Reservation, and
ensure quality management of our trust resources. We have been able to
successfully administer our many programs by establishing a solid
governmental and administrative structure. We are a government of laws,
ordinances and procedures. We believe this is essential for Self-
Governance and successful program administration. However, it must be
recognized that the ISDEAA includes opportunities for all tribes to
plan programs or portions thereof. With this, a tribe that does not
want to assume carrying out the program itself can nevertheless
participate in the planning and design of the program so that its
values and priorities are incorporated into the program. We believe
that programs are stronger and better-suited to meet the needs of a
tribe and its members, lands and assets when the tribe is involved in
the development and design of those programs.
Economic Development
Self-Governance also sets a foundation for economic development. It
requires advanced governmental and administrative structures which are
also needed for conducting business on the Reservation and attracting
business to the Reservation. As part of our governmental structure, we
have a comprehensive business code which tells potential business
partners that we are a government of laws that is interested in and
open to business. Further, Self-Governance allows tribes to be flexible
in their programs, which can spur economic development. For example,
our Forestry Department operates its own logging company, which creates
employment and our forest management plan allows our timber to be
``Smart Wood'' certified which allows lumber products produced from our
timber to be exportable overseas, creating increased value and revenue
from our timber sales. Notably, Stephen Cornell and Joseph Kalt, co-
founders and co-directors of the Harvard Project on American Indian
Economic Development, cited a 1994 Krepps and Caves study that found
for every timber-related job that moved from BIA forestry to tribal
forestry, prices received and productivity in the tribe's timber
operations rose; this underscored their point that ``Native nations do
a better job of managing their forests because these are their
forests.'' \2\ They went on to conclude that the premier programs and
projects in Indian Country are initiatives of self-government that put
tribes in control of major community and economic development
decisions. \3\ They said that after twenty years of research they could
not find ``a single case of sustained economic development in which an
entity other than the Native nation is making the major decisions about
development strategy, resources use, or internal organization.'' \4\
They stated that practical sovereignty or self-rule, meaning
decisionmaking authority or self-governance, appears to be a necessary
condition for a Native nation's economic development. \5\
---------------------------------------------------------------------------
\2\ Stephen Cornell and Joseph P. Kalt, Two Approaches to
Development of Native Nations, One Works, the Other Doesn't, in
REBUILDING NATIVE NATIONS, 21-22 (Miriam Jorgensen ed. 2007).
\3\ Id. at 22.
\4\ Id.
\5\ Id.
---------------------------------------------------------------------------
Leveraging of Funds which Helps Tribes and the United States
Benefits of Self-governance flow not only to tribes and their
members, but to the United States as well. Tribes are superb partners
for the United States. A benefit of major importance in Self-Governance
that gets little attention is how it has helped to generate additional
funding for carrying out underfunded federal programs. The chronically
underfunded Indian programs within the BIA and IHS budgets have been
well-documented over the past several decades. Many tribes hesitate to
assume federal programs under Self-Governance because they understand
there is not adequate money to support the tribe in carrying out the
functions of the programs that the tribes want to administer. However,
while Self-Governance is an authorizing law--not an appropriations
law--it gives tribes the ability to generate significant additional
dollars to help offset the cost of carrying out trust activities. At
Hoopa, we can show that the Tribe matches $3.00 from other sources for
each $1.00 compacted from the BIA that is used for trust management
programs. This is a significant benefit not only for our programs and
tribal members we serve, but for the United States too which carries,
per the federal trust responsibility, an ultimate responsibility of
providing for and protecting the Tribe. A part of the United States'
trust responsibility in the context of Self-governance is to support
tribal programs and facilitate compacting with tribes. We believe Self-
Governance results in more robust, better-funded and more tailored
programs than what the United States could design or administer on its
own. The United States should recognize the economic benefit of Self-
Governance and seek ways to work with tribes to further and foster
Self-Governance.
We emphasize, however, that the United States still has a
responsibility to ensure adequate funding for programs that serve
tribes and Indian people. Most of these programs, if not all, are
woefully underfunded. Again, Self-Governance does not diminish the
federal trust responsibility in any way. With this, Self-Governance and
its ability to facilitate leveraging of funds does not relieve the
United States from adhering to its trust responsibility to provide
sufficient funding levels for programs. When developing its annual
budgets, the Federal Government must ensure that the funding needs of
Self-Governance tribes are met and that as needs increase, such as for
infrastructure development necessary to carry out programs, that
funding levels increase as well. Self-Governance should be seen as the
springboard for economic development that it is and should be fully
supported and funded by the Federal Government.
Advancing the Federal-to-Tribal Relationship through Self-Governance
Another benefit of Self-Governance is the ability to redefine the
working relationships between tribes and the Federal Government. The
Hoopa Tribe has enjoyed a solid working relationship with the BIA PRO
for more than a decade. In 1997, Hoopa and six other California tribes
established the California Trust Reform Consortium. It was created to
work with the PRO to address the trust resource management issues from
which many of the claims made in the Cobell litigation were based. In
1998, the Consortium and the PRO entered into an agreement that
established the terms, conditions and operating procedures for the
Consortium. The ability to develop a new working relationship with the
PRO was made possible by the flexibility created by Self-Governance.
The agreement defines the management roles and responsibilities of the
PRO and the tribes. It includes provisions for a funding process
through the PRO; a joint oversight advisory council; a process for
developing ``measurable and quantifiable trust management standards;''
methods for resolving disagreements and disputes; and finally, a
participatory process for annual trust evaluations. This unique working
relationship has worked well for years. It advanced the Federal-Tribal
relationship for us and Consortium member tribes.
When the Department of Interior launched its trust reform
initiatives in the early 2000s, we took action on the foundation that
what was working in Indian Country regarding trust resource management
should not be changed, it should be preserved. We created the Section
139 Trust Reform Demonstration Project with the Consortium, the Salt
River-Pima Maricopa Indian Community, the Confederated Salish and
Kootenai Tribes and the Chippewa Cree Tribe of the Rocky Boy's
Reservation. The Demonstration Project authorized the tribes'
successful trust asset management systems to operate separate and apart
from Interior's trust reform reorganization, and prevented Interior
from imposing its trust management infrastructure upon or altering the
tribes' existing trust resource management systems. The tribes had to
carry out their responsibilities under the same fiduciary standards as
those to which the Interior Secretary was held and had to demonstrate
to the Secretary's satisfaction that they had the capability to do so.
We, along with the other Section 139 tribes, underwent an
evaluation by the Office of Special Trustee and received a
determination that we had the capability to perform compacted trust
functions under the same fiduciary standards to which the Secretary is
held. Hoopa was cited as ``an excellent example of trust
administration, in furtherance of tribal self-determination.'' Section
139 confirmed that local tribal decisionmaking and cooperation from the
Federal Government can result in significant trust management
improvements and that tribes can properly implement trust management
even though they may use different practices and methods than Interior.
Key to our success in this regard is our self-governance. It allowed us
to advance the Federal-Tribal relationship to a different level, one
where our systems were recognized as an example of excellent trust
administration and the Federal Government's new structures were not
needed to improve them.
Preserving what is working in Indian Country is our mission along
with a forward-looking approach to improving Self-Governance to advance
and fulfill its objectives.
Next Steps for Advancing the Federal-Tribal Relationship through Self-
Governance
The United States should acknowledge that tribal governments are
great partners and that Self-Governance has provided myriad benefits to
tribes, tribal members and the United States, itself. We are pleased
with Deputy Assistant Secretary Larry Roberts' testimony in this
hearing which states that this Administration supports tribal self-
determination and that it believes that ``tribal leadership is critical
in facing and solving the problems of today, and that Native Americans
must have a voice in programs and government efforts which are
important to their lives.'' We appreciate the support and agree with
the statement. However, more must be done to further Self-Governance as
we reflect on past successes and look ahead on how to create the
future. Non-BIA mandatory programs, the Indian Trust Asset Management
Demonstration Project, and extending Title V Self-Governance to other
agencies within the Department of Health and Human Services would
advance the Federal-Tribal relationship in the correct and necessary
direction.
Non-BIA Mandatory Programs
An area of major interest for our Tribe is compacting non-BIA
programs. Title IV of the ISDEAA (the Tribal Self-Governance Act, 25
U.S.C. 458aa et seq.) should ensure that non-BIA programs are
mandatory for compacting. The trust responsibility is an obligation of
the United States not just the BIA. All federal agencies that perform
functions that impact trust resources or tribal rights have a trust
obligation to protect those resources and rights. Self-Governance
affords tribes the ability to ensure trust resources and tribal rights
are protected through compacting. We strongly feel that this ability
should be extended to other federal agencies on a mandatory basis
without the discretion of the Secretary.
The Tribal Self-Governance Act provides for compacting non-BIA
functions in 403(b)(2) and (c) of Pub. L. 93-638. Mandatory
compacting is required only as to services ``otherwise available to
Indian tribes or Indians,'' while discretionary compacting extends also
to programs of special geographical, historical, or cultural
significance to the tribe. The courts have limited mandatory compacting
to programs specifically targeted to Indians. Thus, Interior has
interpreted programs directed to improving trust resources, such as
fish harvests, as falling outside of `638 compacts because they have
collateral benefits to non-Indian fishing interests unless the non-BIA
agency, in its discretion, chooses to include them.
A primary and important example of the problem concerns our
federally-reserved fishing rights in the Trinity River which flows
through the Hoopa Reservation. The Bureau of Reclamation operates the
Trinity River Division of the Central Valley Project. The Trinity Dam,
completed in 1964, was the primary reason for 80 percent declines in
the Trinity River fishery resources, and has been the subject of
numerous congressional and court actions associated with violations of
the United States' trust obligations to the Tribe. To correct the
declines in fishery resources, Congress passed various federal laws
that mandated restoration of the Trinity River fishery resources as
part of the Federal trust obligations to the Tribe.
The problem is that funding and management for Trinity River
habitat restoration may jeopardize a trust resource and threaten our
federally-reserved fishing rights. The Hoopa Tribe is recognized by law
as a co-manager of the Trinity River Fishery. We have worked tirelessly
for years to obtain congressional action to address inadequate funding
levels for the Trinity River Restoration Program. We have also sought
to carry out more functions related to river restoration. Reclamation,
however, determined that the programs that are mandated by Congress to
fulfill the trust obligations of the United States to our Tribe are not
``Indian Programs'' under the Self-Governance Act. Reclamation does not
perceive the trust responsibility as an obligation that gives tribal
water and fishing rights any priority. Absent an acknowledgement that a
trust duty is owed, protection of our rights takes a back seat to other
projects, even new or newly proposed projects.
The Title IV legislation, now H.R. 2444, at one time included
specific language that would enable tribes to compact to perform
programs, or portions of programs, that ``restore, maintain or preserve
a resource (for example, fisheries, wildlife, water or minerals) in
which an Indian tribe has a federally reserved right, as quantified by
a Federal court.'' Proposed 405(b)(2) of H.R. 3994, 110th Cong. 1st
Sess. Such language is important to our Tribe; it would resolve
problems we face with Reclamation over the management of Trinity River
programs. These problems include delays in executing contracts which
result in a significant financial burden for the Tribe and
administrative, programmatic and staffing nightmares for our programs.
Another example involves realty. As previously mentioned, we
compact realty and, this gives rise to another example of the need for
compacting on a mandatory basis with agencies outside the BIA. We
struggle with the underfunding of the realty program in general. We
also struggle with the fact that surveys are done through the Bureau of
Land Management with federal monies transferred from the BIA to the
BLM. When we first compacted with BIA, the BIA would transfer monies
allocated to it for surveys to the BLM where BLM would designate a BLM
surveyor for surveys needed on the Reservation. BIA's position was
that, technically, it did not have funding for surveyors since such
monies were transferred to BLM. Now, there is one BLM position,
identified as American Indian Surveyor, in each of the BIA Regions.
With this, there is one such position in the BIA Pacific Region to
serve 115 tribes. Not only is this inadequate for the workload, but the
position does not do actual surveys. It reviews documents submitted in
relation to fee-to-trust applications. Our realty functions are
hindered due to the lack of funding for surveys and the inability to
obtain adequate and timely surveys. We believe it would be helpful to
compact directly with the BLM for survey activities. Further, more
funding is required for such functions to be carried out effectively.
Again, the trust responsibility is the trust responsibility of the
United States and it is owed to tribes by all federal agencies. This
must be put into practice to ensure proper management of trust
resources. Tribes signed treaties with the Federal Government; their
relationship is with the United States overall. We had no part in
creating the structure of the Federal Government which is divided into
several agencies. If an agency is part of the Federal Government, it
must carry out the trust responsibility. There is no reason for a
different policy to exist with respect to an agency that carries out a
trust function just because it exists outside of the BIA.
Significantly, for BIA programs to develop law enforcement, the
presence of benefits to non-tribal members does not remove the program
from mandatory compacting. Likewise, programs directed to restoring and
protecting trust resources, such as Indian water rights or fisheries
resources, should not be excluded from mandatory compacting simply
because those programs are administered by non-BIA agencies.
We believe the time has come for tribes to exercise their self-
governance in other areas and in a more expansive way. With this, we
ask the Committee to focus on the non-BIA compacting issue as a means
of furthering Self-Governance to where it needs to be, advancing the
Federal-Tribal relationship to the next level and ensuring the United
States fulfills its trust responsibility.
TITLE III of S. 1439, the Indian Trust Asset Management Demonstration
Act
We also request that the Committee introduce Title III of the S.
1439, the Indian Trust Reform Act of 2005. Hoopa worked with several
tribes in the Northwest and the Committee staff to develop this
proposal. It would further the objectives of tribal self-governance.
Title III of S. 1439 would create the Indian Trust Asset Management
Demonstration Project, which would allow tribes to develop and operate
their own tribally-developed trust asset management plans and manage
their assets in a manner different than the Secretary as long as the
tribe's plan is consistent with tribal and federal law applicable to
the trust assets, or the management of the assets, and the federal
trust responsibility, and satisfies certain standards. We are already
doing this with our forestry program, which is acknowledged nationally
as a model program. Further, we were one of the Section 139 (131)
tribes which would be grandfathered into the Demonstration Project
under the terms of Title III of S. 1439. Title III encourages local
decisionmaking and cooperation between tribal governments and the
United States. It acknowledges that the United States' fulfillment of
its trust responsibility does not require day-to-day management, but
facilitation of tribal self-governance and self-sufficiency.
We believe Title III would provide another useful model for tribes
to exercise self-governance and self-determination, assist the United
States with proper trust assets management, and create an
understanding, on the part of the United States, of tribal values and
expectations when managing trust assets within our territories. Self-
Governance plays an integral role in our management of our trust
resources and assets. Yet, we believe that all tribal governments
should be a part in the management of trust resources within their
jurisdictions. Tribes' active participation in the management of trust
assets creates beneficial results, advances the Federal-Tribal
relationship and reduces chances of conflict between tribes and the
United States. Enacting Title III would result in positive practices
and trust management improvements. We support the concept of Title III
of S. 1439 and would look forward to working with the Committee to
enact such a provision.
Self-Governance with Other Agencies within the Department of Health and
Human Services
The Department of Health and Human Services (DHHS) conducted a
feasibility study in 2003 to examine the feasibility of including non-
Indian Health Service (IHS) agency programs within DHHS in a Self-
Governance demonstration project. Unfortunately, while the study set
forth eleven programs that could be included in such a demonstration
project little progress has been made since that time. Further, the
tribal delegates in the Self-Governance Tribal-Federal Workgroup, which
was created to work on how such non-IHS programs could be included in a
self-governance demonstration project, are finding that the federal
delegates are curbing the concept and encouraging tribes to use non-
ISDEAA models or to include self-governance language in reauthorization
legislation for single programs. We believe programs of non-IHS
agencies should be included in a demonstration project under the
auspices and procedural protections of Title V.
Conclusion
We appreciate the opportunity to submit our views for the record on
this important topic. Self-Governance has been a success for the Hoopa
Valley Tribe, admittedly through our own hard work. It has laid a
foundation for tribal economic development, allowed us flexibility in
carrying out our programs for our members, ensured flexibility in our
management of our trust resources and has advanced our relationship
with the Federal Government. Certain steps must be taken, however, to
bring Self-Governance to the next stage and carry out the full effects
intended when the law was passed decades ago.
Thank you for your consideration, and please do not hesitate to
contact us if you have questions or need additional information.
______
Prepared Statement of Hon. Alvin Moyle, Chairman, Fallon Paiute
Shoshone Tribe
Honorable Chairman Akaka and Honorable Vice-Chairman Barrasso:
We, the Fallon Paiute Shoshone Tribe come to you today as a Tribe
united and hereby express the following:
When Columbus reached the Americas there were hundreds of tribal
nations. Each one of us had our own unique culture and way of
governance. Five European governments crossed the ocean to claim our
which they called the new world. New to them, but not new at all, this
is our homelands . . . invaded.
The European Nations had an unwritten Agreement with one another,
that whatever land the nation claimed that Nation had the right to
settle the land rights with the aboriginal inhabitants. The Agreement
allowed each exploring nation to define its' relationship with the
aboriginal people. That Agreement is the Doctrine of Discovery. The
international root of federal Indian law, as we know it.
For the first 250 years after Columbus arrived it was not clear
which European country would win the power to colonize the land . . .
our land. Although, treaties were sometimes negotiated with the Indians
conflicts over the demand for land began a long pattern of removing
Indians from their homelands creating tragic hardships and strained
relationships between the settler and the original people.
We, tribal communities, could not have even imagined how many
problems the arrival of the Europeans would bring. The invisible
invaders of disease, new wars, loss of land, the introduction of
alcohol, the challenge still faces Indian Country today and our way of
life.
In 1763 the British issued a Royal Proclamation as an attempt to
improve relations between the colonies and the original people. This
was the first time that any European government used or coined the term
``Indian Country'' and it described all the country west of the
Appalachians essentially that was defined by a series of treaties
negotiated by the British Crown with the individual Indian tribes; and
that country was where the laws of the Indian applied. In fact, the
Proclamation so says ``the laws of the Indian apply and the laws of
Great Britain do not.'' If you went into Indian Country you were
subject to the laws of the Indian tribe.
The Proclamation of 1763 like a lot of laws probably did just the
exact opposite of what it was intended to do. If it was intended to
improve relationships between the colonies and the Indians it seemed to
do just the opposite, because it along with other English enactments
became the reason for the American Revolution. It in fact, prohibited
colonists from going into Indian Country and trying to acquire Indian
land or to speculate in Indian land . . . and that did not please the
Colonists.
Honorable Senate Committee on Indians affairs this was the
beginning of the abuse the Native Americans have endured for centuries.
The Government made us dependent on them and have had the trust
responsibility, as it is now called, back then it was a guardian/ward
relationship. Congress has the plenary power over Native Americans. We
all know how the pendulum swings for the Native Americans . . . back
and forth. The policies have been both harmful and helpful.
We, the Fallon Paiute Shoshone Tribe, are very grateful for
President Obama's Executive Order 13175 to respect the government-to-
government relationship we share. The feeling we have in Indian Country
is not a feeling of loss, but a feeling of revival and an optimistic
look towards the future.
The Federal Government has maintained this guardian/ward (trust)
responsibility.
The times have changed, but some things are still the same for the
Native Americans. We still have the insecurity of the rug being pulled
out from under us, so to speak. Our funding, we depend on, is
constantly in jeopardy, because we are seen as discretionary. The
Native Americans are not discretionary and should NOT be seen as such.
Native Americans have inherently had our own governments, as proven
when the Colonists defeated the British in the American Revolutionary
War and declared independence to form a new country in 1776. Ben
Franklin and the other colonial leaders looked to the ``Great Law of
Peace'' of the Iroquois Confederacy for ideas on how to set-up a union
among state sovereigns balancing power in government.
The Merriam Report informed Congress of the deplorable conditions
the original people were now faced with, yet nothing was done.
Again the feeling in Indian Country is not a feeling of loss, but a
feeling of revival and an optimistic look towards the future.
We have formed the National Congress of Americans Indians and
believe the two Congress' need to work hand in hand in consultation.
Due to our limited tribal budgets travel is not an option, for some of
us. We are all members of the National Congress of American Indians and
they are our voice on all of the issues we, the Fallon Paiute Shoshone
Tribe face:
1. Budget
2. Land
3. Water
4. Education
5. Economic Development
6. Law Enforcement
We are not discretionary and request that we NOT be seen as such.
The National Congress of American Indians has submitted the Indian
Budget and the Fallon Paiute Shoshone Tribe fully supports it and
submits a copy with our Statement.
During Tribal Unity Impact Week we, the Fallon Paiute Shoshone
Tribe, are calling on members of Congress to stand with Indian Country
in support of:
LAND RESTORATION--The Department of the Interior's authority
to restore land into trust for Indian tribes is under attack.
The Supreme Court's decision in Carcieri v. Salazar was the
first broad stroke challenging DOI's land into trust authority
by reinterpreting the language of the Indian Reorganization Act
of 1934. Recently, the Supreme Court's decision in Match-E-Be-
Nash-She-Wish Band v. Patchak held that the Quiet Title Act
does not protect Indian lands held in trust, and any
disgruntled neighbor may retroactively challenge the trust
status of tribal lands. We must urge Congress to restore and
protect DOl's authority to take land into trust for all
federally recognized Indian tribes.
PROTECT NATIVE WOMEN--Urge Congress to stand with tribal
nations to halt the epidemic of violence against women in
tribal communities. Congress has come to a decision point on
the reauthorization of the Violence Against Women Act (VAWA).
The Senate bill, S. 1925, contains Section 904, which would
restore tribal jurisdiction over non-Indians for certain crimes
of domestic violence and dating violence committed in Indian
country. Section 904 is broadly supported by Indian tribes
across the country; however, the House version, H.R. 4970, does
not include the tribal criminal jurisdiction provisions, and
some members of Congress have stated objections to it along
with other sections of the legislation. Now is the time for
tribes to urge Congress to pass a VAWA reauthorization right
away that keeps the key tribal provisions intact!
EMERGENCY RESPONSE ACTION--Congress should pass legislation
to provide Indian tribes the authority to submit direct
requests for a federal emergency or disaster declaration. Both
S. 2283 and H.R. 2903 seek to amend the ``Stafford'' Act to
provide Indian tribes the authority to submit direct requests
to the President for a federal emergency or disaster
declaration. Currently, tribes must request a declaration
through the office of the state governor. The amendments are
critical tools to equip tribal governments to act swiftly to
protect their people and homelands during emergencies.
THE INDIAN BUDGET--The federal trust responsibility is not a
line item. Congress will soon debate how to avoid the ``fiscal
cliff,'' the term for a series of deadlines at the end of 2012
when tax cuts expire and automatic spending cuts--or
sequestration--will take effect. Experts warn if Congress does
nothing, it could lead to another recession. But any deal that
makes more harmful cuts to Indian programs also threatens the
health and welfare of Indian people. Under the Budget Control
Act, most federal programs face a destructive across-the-board
cut in January 2013 if Congress fails to enact a plan before
then to reduce the national debt by $1.2 trillion. The federal
trust obligation to Indian tribes must be honored and vital
tribal programs must be sustained in any deal to reduce the
national debt. Please join tribal leaders and advocates in
supporting the Indian budget for 2013 and beyond.
CONFIRMATION OF THE ASSISTANT SECRETARY FOR INDIAN AFFAIRS--
Dean Kevin Washburn of the University of New Mexico Law School
has been nominated to be the Assistant Secretary for Indian
Affairs. Tribes are urging the Senate to take quick action to
confirm this nomination because of vacancies at the Bureau of
Indian Affairs that threaten to create a leadership void. The
Assistant Secretary is the senior decision maker on important
issues of public safety on Indian reservations across the
country. The leader of the BIA is frequently faced with
decisions that directly affect human lives, and the position
should not be left unfilled for a period of many months until
after the next election. Dean Washburn is well-qualified to
serve as Assistant Secretary. He is a former federal
prosecutor, a pre-eminent scholar on law enforcement in Indian
country, and has management experience.
Again the feeling in Indian Country is not a feeling of loss, but a
feeling of revival and an optimistic look towards the future.
Honorable Chairman Akaka and Vice-Chairman Barrasso, we thank you
for the opportunity to speak with you on the importance of our
government to government relationship and to work together for our
betterment and survival in a good way. We, the original people, have
always had the utmost respect for our Mother Earth and she now cries
for all of the pain the Colonists have caused.
We ask that the Indian Budget not be considered discretionary.