[Senate Hearing 116-410]
[From the U.S. Government Publishing Office]
S. Hrg. 116-410
FROM LANGUAGES TO HOMELANDS: ADVANCING TRIBAL SELF GOVERNANCE AND
CULTURAL SOVEREIGNTY FOR FUTURE GENERATIONS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
DECEMBER 9, 2020
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
43-336 PDF WASHINGTON : 2021
COMMITTEE ON INDIAN AFFAIRS
JOHN HOEVEN, North Dakota, Chairman
TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska JON TESTER, Montana,
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana CATHERINE CORTEZ MASTO, Nevada
MARTHA McSALLY, Arizona TINA SMITH, Minnesota
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Jennifer Romero, Minority Staff Director and Chief Counsel
C O N T E N T S
----------
Page
Hearing held on December 9, 2020................................. 1
Statement of Senator Cantwell.................................... 24
Statement of Senator Cortez Masto................................ 31
Statement of Senator Hoeven...................................... 1
Statement of Senator Murkowski................................... 4
Statement of Senator Smith....................................... 33
Statement of Senator Tester...................................... 35
Statement of Senator Udall....................................... 2
Witnesses
Echohawk, John E., Executive Director, Native American Rights
Fund........................................................... 21
Prepared statement........................................... 23
Francis, Hon. Kirk, President, United South and Eastern Tribes
Sovereignty Protection Fund.................................... 13
Prepared statement........................................... 15
Vallo, Hon. Brian D., Governor, Pueblo of Acoma.................. 5
Prepared statement........................................... 7
Appendix
Letters submitted for the record
Response to written questions submitted by Hon. Catherine Cortez
Masto to:
Hon. Kirk Francis............................................ 49
Hon. Brian D. Vallo.......................................... 54
Response to written questions submitted by Hon. Tom Udall to:
Hon. Kirk Francis............................................ 56
Hon. Brian D. Vallo.......................................... 50
Schatz, Hon. Brian, U.S. Senator from Hawaii, prepared statement. 41
State of Hawai'i, Office of Hawaiian Affairs (OHA), prepared
statement...................................................... 41
FROM LANGUAGES TO HOMELANDS:
ADVANCING TRIBAL SELF-GOVERNANCE AND CULTURAL SOVEREIGNTY FOR
FUTURE GENERATIONS
----------
WEDNESDAY, DECEMBER 9, 2020
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:43 p.m. in room
628, Dirksen Senate Office Building, Hon. John Hoeven,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. Good afternoon. I call this oversight hearing
to order.
As we close out the 116th Congress, we will hear from
leaders of the tribes and tribal organizations on what Congress
can do to further strengthen the foundational principles of
tribal sovereignty and self-governance during today's hearing,
entitled From Languages to Homelands: Advancing Tribal Self-
Governance and Cultural Sovereignty for Future Generations.
Before we get to opening statements and the witnesses'
testimony, I would like to take a moment to recognize Vice
Chairman Udall, who is retiring at the end of this Congress.
This being our last Indian Affairs Committee hearing of the
year, I want to thank him for his dedication and steadfast
leadership to this Committee. This Committee has a long history
of working in a bipartisan manner, and this spirit of
bipartisanship continues today.
For example, in the 115th and 116th Congresses, we have
passed 80 bills out of our Committee. Over half of those have
received co-sponsorship by both Democrats and Republicans.
Since 2017, Senator Udall and I have served as Vice Chairman
and Chairman of this Committee. Senator Udall is a large reason
why this bipartisan tradition has continued. I think we have
about a dozen bills we are trying to hotline right now, too, so
the work continues.
I greatly appreciate and am proud to have worked with Vice
Chairman Udall on legislation that improves the quality of life
in Indian Country. This includes S. 211, the SURVIVE Act, which
secures resources for Indian victims of violent crimes, as well
as the recently signed into law Progress for Indian Tribes Act,
which strengthens and reforms self-governance and self-
determination programs. These are in addition to the many bills
that Senator Udall has helped shepherd to the President over
the years, including the Esther Martinez Language for
Reauthorization Act, and the Native American Business and
Computers Act as examples.
I want to thank Vice Chairman Udall for his friendship and
his service to our Country, the great State of New Mexico, and
to Indian Country. I want to wish you, Vice Chairman Udall, and
Jill, very best wishes going forward in what I know will be
very productive and very good future endeavors.
I also want to take a moment to thank our respective staffs
on the Committee for a job well done. From my staff, John,
Jacqueline, James, Chase, Brandon, Holmes, Caitlin, Christy,
and Elizabeth, and most of all, of course, to Mike, our staff
director, who is exceptional. I acknowledge all of you for the
professional work you do, and I thank you.
I also thank, in addition, Jim and Avis and Zach and Dawson
and also Jack. And also, I want to say a thank you to Mel, who
has been the Committee hearing reporter this past Congress.
Thank you, sir.
And with that, I will turn to Vice Chairman Udall.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Mr. Chairman, thank you so much, and thank
you for the very kind words and the kind words Senator
Murkowski and others have said here today.
For the past 43 years, the Senate has relied on this
Committee to lead its work advancing Federal Indian policy and
living up to our constitutionally enshrined trust and treaty
responsibilities. I am honored to have been a member of this
Committee for the past 12 years, over one-quarter of its
history, and have led this Committee, alongside you, Mr.
Chairman, for the last four years.
During my tenure with the Committee, we have joined
together with tribal leaders to advance Indian Country's
priorities. Sixty of the Committee's bills have been enacted in
that time, and we have seen countless other committee-led
policies included in broader Senate packages.
Mr. Chairman, I take no small amount of pride in noting
that the Committee's productivity under our leadership has been
remarkable. Together we have convened over 50 hearings and
enacted 21 Indian Affairs bills. The spirit of bipartisanship
is alive and well in the Indian Affairs Committee. I expect
that tradition to continue long after we depart these halls.
Indeed, it has been a historic decade. I am proud that we
have helped expand self-determination programs to new
departments, permanently reauthorize the Indian Health Care
Improvement Act, improve access to Federal Native language
programs, restore tribal jurisdiction over domestic violence
offenses, secure inclusion of Indian Country priorities in the
Farm Bill, that was a big first, support small businesses and
entrepreneurs in Native communities, and ensure tribes were not
left behind when Congress negotiated COVID-19 relief.
I have fought alongside tribal leaders to defend tribal
sovereignty, sacred sites, and the Indian Child Welfare Act.
Our work in Indian Affairs is proof positive that
bipartisanship can still find its footing here in Washington,
that progress and principles need not to be sacrificed for
political gamesmanship or political expediency.
I have often said that I came to Washington to take the
tough votes, to tackle the difficult issues. When it comes to
Indian affairs, there have been many times when it would have
been easier, more expedient, more popular, to give in and say
sovereignty sometimes, self-governance when it is convenient,
or consultation if there is time. But public service isn't
about doing what is easy. I came here to fight for New Mexico,
to fight for Indian Country, and to legislate from a place of
principle.
Today's hearing is an opportunity to reflect on these
lessons, to examine our shared legacy and discuss what still
remains to be done. Through my own time in the Senate, and my
own time in the Senate is drawing to a close, my commitment to
the core principles that have guided my work on Indian Affairs
throughout my public service careers remain unwavering.
Soon we will hear from Governor Vallo, President Francis,
and Mr. Echohawk. I hope everyone will consider their testimony
with great care and attention. As tribal leaders and advocates
in their field, I am heartened to have them as witnesses today.
Also hopefully we will ask ourselves how we can act on
their advice better, respect tribal sovereignty, promote tribal
self-determination and ensure government to government
consultation is meaningful. These principles must be the
bedrock for Federal actions, because if we truly want to
advance sound policies for future generations, we must all
commit to a principled approach to developing Indian affairs
law and policy.
Thank you, Mr. Chairman, for working with me to convene
this important hearing. I can think of no better topic to close
out our work for the 116th Congress.
With your indulgence, I would like to just add one more
thing before I wrap up my statement. Success in Congress is
built on collaboration, members working together with other
members, committees working with other committees. And of
course, committees working with their staff. The remarkable
success we have enjoyed in Indian Affairs in the last four
years is the result of the work of each Senator on this dais. I
am truly humbled to have called you all colleagues and friends.
It is also due in no small part to our excellent staff,
without whom we would surely be lost. So I will close by saying
thank you to my own Indian Affairs Committee staff, as you have
done with yours, Mr. Chairman, Jennifer Romero, Anthony
Seville, Kim Moxley, Joss Mayhan, Connie Socideharo, Anu
Tupper. Your tireless work on behalf of the Committee and
Indian Country has been of the highest caliber.
Thank you. I yield, Mr. Chairman, to you.
The Chairman. Thank you, Vice Chairman Udall. With that, I
would turn to other members who would like to make an opening
statement. Senator Murkowski?
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman, and Vice
Chairman Udall. I appreciate the fact that we have scheduled,
as you point out, Senator Udall, this very important hearing as
it relates to advancing tribal self-governance, cultural
sovereignty, future generations. It is pretty forward-leaning,
and I think, as you say, it is a very fitting way to end a very
productive Committee schedule here within Indian Affairs.
I am not going to be able to stay for the balance of the
hearing and hear from these very important witnesses. I am
working on trying to put together a COVID emergency relief
package, and part of my focus within that is to ensure that our
indigenous peoples, that the tribes are represented, that we
have tribal set-asides, whether it is making sure than when
States and locals receive money that our tribes also receive
that Federal support, whether it is tribal set-aside for
broadband or for the nutrition programs, making sure that we
are always thinking about our first peoples and putting them
first.
But before I leave, I want to take just a couple of minutes
and recognize Vice Chairman Udall, my friend, not only my
friend here on the Indian Affairs Committee, but my partner for
many years now on Interior Appropriations, where we have
oversight of IHS, of the IA and so many of these very, very
important accounts. I have had an opportunity to be here on the
Committee now for my full tenure, 18 years on the Indian
Affairs Committee.
I agree with you, Senator Udall, I think that this is a
place where we can come together, work through some different
issues, because we all come from different places. And the
needs of the Native people in New Mexico may be different than
in Alaska or in the Dakotas. But we know the needs are there,
and they are very real. We have worked together to solve that.
So to call this place, this Committee, a refuge of
bipartisanship I think is a tribute to the Committee, to the
staffs, and to the effort to try to do right for all the right
reasons.
I think about the things that we have partnered on just in
this 116th Congress. We have had some pretty critical pieces of
legislation come together. Some have become law, some we are
going to need to keep working on. But when I think about what
we did to build on the tribal jurisdiction provision within the
2013 VAWA Act, the Native Youth and Officer Protection Act,
addressing violence against Native women, children and tribal
law enforcement.
We have also your BADGES legislation addressing public
safety needs in Indian Country. What we have done to, what we
as a full committee have done, to address the unconscionable
crisis as it relates to murdered and missing indigenous women
and girls, what we have done to get the attention of the
agencies to improve data collection, understanding what it is
that we know and understanding what it is that we don't know.
What we are doing to improve public safety resources and
clarifying tribal jurisdiction.
You mentioned the sovereignty issue. I was very pleased to
be able to work with you and our team as we filed that
bipartisan, bicameral amicus to make the case for the
constitutionality of the Indian Child Welfare Act, and
Congress' authority, the trust responsibility to legislative
for the benefit of Indian tribes. I think it was probably one
of the most significant pieces of Indian legislation that
Congress has enacted. And to really maintain the integrity of
Native culture and family. So working together with you on that
was very, very important.
On the culture side, the work that we have been able to do
when it comes to languages has been so, so, so very important
and appreciated. You mentioned the Esther Martinez Native
Languages Act. But we have also introduced the Durbin Feeling
Native Languages Act just recently. So we had Esther Martinez
signed into law last year, and know that I am going to continue
our joint effort as we work to support Native languages.
I will mention the work that we have done on Interior
Appropriations, and the partnering that we have done. We have
some pretty strong staff, Rebecca and Emmy and the rest of the
teams there that have really worked to ensure that the support
for Indian Health Services and health care for Native peoples
is good, is solid, is robust. We know we have to do more.
But what we were able to do with advanced appropriations
for IHS, that is significant, significant stuff. That is legacy
stuff. And again, I think in the midst of this pandemic, the
impact that we have seen in Indian Country with
disproportionate health and economic impacts, everything that
we can be doing to work in a bipartisan basis for the
betterment of Native peoples and the fiscal and health needs
are things that, whether it is New Mexico, whether it is
Alaska, whether it is North Dakota, we are doing this together.
I want to thank you for your leadership and your care and
your heart, particularly for American Indians, Alaska Natives,
Native Hawaiians. I have seen you engage in so many other
different issues and areas. But you can tell that your heart is
with the people. So I thank you for that.
We will miss you. I will miss having you and Jill here. But
know that your contributions are appreciated and will be long-
lasting.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Murkowski.
We will turn to Senator Smith virtually.
[Pause.]
The Chairman. All right, then we will proceed until she
returns.
Now we will hear from our witnesses, starting with the
Honorable Brian Vallo, Governor, Pueblo of Acoma; the Honorable
Kirk Francis, President, United South and Eastern Tribes
Sovereignty Protection Fund, Nashville; and Mr. John Echohawk,
Executive Director, Native American Rights Fund, Boulder,
Colorado. All of them will be testifying virtually.
We will begin with Governor Vallo.
STATEMENT OF HON. BRIAN D. VALLO, GOVERNOR, PUEBLO OF ACOMA
Mr. Vallo. [Greeting in Native tongue.] Good afternoon,
members of the Committee, Chairman, Vice Chair Udall. Thank you
for this opportunity.
I am Brian Vallo. I am the Governor of the Pueblo of Acoma
of New Mexico. I thank the Committee for this opportunity to
testify on Advancing Tribal Self-Governance and Cultural
Sovereignty for Future Generations.
In discussing tribal cultural issues and the government-to-
government relationship, there is one dominant question. That
question is, will tribal values and beliefs regarding our
ancestors, our sensitive tribal cultural heritage items, and
our sacred landscapes, be honored and respected by the United
States government or not?
This Committee has elevated tribal belief and values, which
is why Indian Country so often turns to you for justice and
support. Over the last few decades, as a result of your work,
and that of others, and despite many challenges, much progress
has been made to protect tribal sovereignty and culture.
When you look for common threads in this work, one that
stands out is Vice Chairman Udall, Indian Country's constant
friend and ally. As this is Vice Chairman Udall's last Senate
hearing, I would like to note that he has always answered the
question I posed a moment ago by stating firmly that tribal
beliefs should be honored and prioritized and that the United
States should live up to its trust responsibilities.
Vice Chairman Udall, going back to your time as the New
Mexico Attorney General, followed by your service in the House,
where you were a cosponsor of the original Esther Martinez
Native Language Act, and finally in the Senate, you have been
one of Indian Country's greatest supporters on a wide range of
issues. The Udall name is legendary in Indian Affairs, standing
for justice and humanity, and you have honorably continued that
service and commitment to Native people. Your good work will be
felt for many generations to come.
In the cultural space, much good work has been done, and
much remains, including items the Committee is working on right
now. In the area of sensitive Tribal cultural heritage items,
this Committee has done a lot of work on the Safeguard Tribal
Objects of Patrimony Act, including adopting in July a
comprehensive amendment developed in coordination with all the
stakeholders and Federal agency experts. This act will address
a gap in Federal law that makes it difficult to recover items
from overseas and encourages unscrupulous individuals to sell
sensitive cultural heritage items into foreign markets. You
know that it took the Pueblo Acoma five years to recover the
sacred ceremonial shield.
There are still a few precious days left in this Congress
to get this bill passed and to make a powerful statement about
support for tribal culture. I urge this Committee to do all in
its power to move the STOP Act forward.
The Pueblo of Acoma has also fought hard to protect its
sacred sites, such as the sacred landscape of the Greater Chaco
Region. Despite the irreplaceable and deeply important nature
of this area, it has faced largely unrestricted oil and gas
development that is inching closer and closer to its center.
The Chaco Cultural Heritage Area Protection Act, introduced by
Vice Chairman Udall, would withdraw from future mineral
development Federal land in an approximately 10-mile area
surrounding the Chaco Culture National Historical Park, while
still preserving the rights of tribes and allottees to develop
on their own land, even in the withdrawal area.
Again, Vice Chairman Udall has been instrumental in
securing funding for a tribally led cultural resource study to
identify which areas are most sensitive and to limit mineral
leases pending completion of that study. We urge the
Committee's support for this legislation.
The Pueblo of Acoma has devoted significant resources into
the revitalization of our language. I have testified before
this Committee on our experience in using ANA grants to seed a
linguistic and cultural movement in the Pueblo of Acoma.
Language is foundational to our cultural sovereignty and
survival. We urge this Committee to support a diverse body of
Federal measures focused on Native language and cultural
transmission. Some of these measures include increased
investment in Indian Head Start, which has become central to
our efforts to educate and engage our young in Acoma culture;
reauthorization of the Esther Martinez Act, a law which has
been successful in advancing Native language revitalization
efforts; continuing funding for ANA grants; and finally,
passage of the Durbin Feeling Native American Languages Act.
In closing, let me return to the question I posed at the
beginning of my testimony: will tribal values and tribal
beliefs regarding our ancestors, our sensitive tribal cultural
heritage items, and our sacred landscapes, be honored and
respected by the United States government, or not? I urge this
Committee to please continue your vital work to ensure that the
answer is always ``Yes.''
Thank you.
[The prepared statement of Mr. Vallo follows:]
Prepared Statement of Hon. Brian D. Vallo, Governor, Pueblo of Acoma
The Pueblo appreciates the opportunity to present information on
this important topic to the Committee and your staff. For millennia,
the Acoma people have worked to fulfill our inherent responsibility to
maintain, live by, and protect our culture. This work is both internal,
ensuring that we are keeping our language and culture alive, and
external, protecting our traditions, cultural resources, and land from
encroachment and desecration. The Pueblo is grateful for the
opportunity to share our experiences with you. We hope that you will
use this information to galvanize your efforts to uphold your trust
responsibilities to Indian Country.
We would also like to take this opportunity to thank Vice Chairman
Udall for his years of advocacy on behalf of the Pueblos of New Mexico
and other tribes throughout the United States. Through not only his
position as a Senator but also as a leader on this Committee, he has
fought hard for Indian Country. We understand that this is his last
Committee hearing, and we extend to him our sincere gratitude for his
service.
I. Cultural Preservation
a. Tribal Cultural Heritage Items
The Pueblo has provided testimony to this Committee many times,
explaining the problem of trafficking in tribal cultural heritage
items, both domestically and abroad. The current federal laws often
used to protect these items, the Native American Graves Protection and
Repatriation Act (NAGPRA), 25 U.S.C. 3001-3013, 18 U.S.C. 1170,
and the Archaeological Resources Protection Act (ARPA), 16 U.S.C.
470aa-470m, have important limitations that leave many tribal cultural
heritage items unprotected. Further, once a tribal cultural heritage
item is exported--even if NAGPRA or ARPA prohibits it from being
trafficked domestically--it is very difficult to stop trafficking and
to bring it home. The Pueblo sees its sacred items set for sale
domestically and abroad, and we are painfully aware of how current
federal law falls short.
With regard to stopping domestic trafficking, the Pueblo has worked
alongside the New Mexico congressional delegation to secure funding
each year to support the Department of the Interior's (DOI) prosecution
of crimes under NAGPRA and other related laws. But more must be done.
Amending NAGPRA and ARPA to do away with loopholes would make
prosecution and deterrence much more feasible.
With regard to international trafficking, the Safeguard Tribal
Objects of Patrimony (STOP) Act of 2019, S. 2165 and H.R. 3846, is one
bill that works to close current gaps in federal law. In 2016, Congress
through the PROTECT Patrimony Resolution, H.Con. Res. 122, acknowledged
these issues. In 2018, the Government Accountability Office released a
report, GAO-18-537, that also acknowledged this problem. The Resolution
supported the development of legislation and the report noted the need
for explicit restrictions on the export of such items. The STOP Act
addresses these issues.
Among other things, the STOP Act puts into place the elements
necessary--an explicit export prohibition and an accompanying export
certification system--to utilize already-existing international
mechanisms to stop illegal trafficking of tribal cultural heritage
items that NAGPRA or ARPA prohibit from being trafficked domestically.
The STOP Act is a narrow bill designed to close one particular gap in
federal law. It has broad support within Indian Country and bipartisan
support within Congress, and it was generated with significant input
from federal agencies with the necessary expertise in this area. In
fact, many of the Members of this Committee are cosponsors of the bill.
The Committee held a hearing on the STOP Act on June 24, 2020, and
on July 29, 2020, ordered the STOP Act to be reported favorably. During
the markup before the Committee, the Committee adopted an amendment
that incorporated expert feedback from tribal representatives, agency
officials, art dealers, and others to ensure the STOP Act accomplishes
its goals.
The House Natural Resources Subcommittee on Indigenous Peoples of
the United States held a hearing on the STOP Act on September 19, 2019,
and the House Natural Resources Committee is ready to accept and move
the Senate-passed version of the bill.
We celebrate the strides the STOP Act has made. We ask the
Committee to usher the STOP Act across the finish line.
b. Sacred Sites
The Pueblo has been heavily involved in fighting to protect sacred
landscapes. This includes ensuring that development decisions are only
made when sufficient cultural resource analysis has taken place
pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C.
4321 et seq., and the National Historic Preservation Act (NHPA), 54
U.S.C. 300101 et seq. It also includes ensuring that sacred
landscapes are properly considered when the federal government makes
land management decisions pursuant to the Federal Land Policy and
Management Act (FLPMA), 43 U.S.C. 1701 et seq.
Tribes are inherently sovereign governmental entities to which the
United States owes a trust responsibility. Despite this status, the
United States has stripped tribes of legal title to most of their
aboriginal territory, often relocating tribes entirely off their
homelands. This means many tribes have important interests tied to land
to which they do not have legal title--including, for example,
interests related to cultural resources. Without legal mechanisms in
place, tribes often lack a voice in important federal decisionmaking
processes affecting land to which we have sacred ties. NEPA and the
NHPA, when implemented correctly, provide tribes a seat at the table,
and FLMPA requires the federal government to consider these issues when
making public land use decisions.
The Pueblo has utilized these and other tools to fight to protect
its sacred sites. One such example is the sacred landscape of the
Greater Chaco Region. For over 2,000 years, Pueblo people lived in
Chaco Canyon, eventually moving outward into the land the Pueblos
currently occupy. Their time in Chaco Canyon, movement outward across
the landscape, and continued interaction with Chaco Canyon after
departure have both resulted in a dense concentration of cultural
resources--including vast pueblo structures, shrines, other sacred
sites, and natural formations with culturally relevant modifications
and meanings--and a sacred interconnected landscape.
Yet, this sacred landscape has been riddled with oil and gas
development, including on federal lands. A portion of the Greater Chaco
Region is recognized as a National Historical Park and UNESCO World
Heritage Site--called the Chaco Culture National Historical Park.
Chacoan Outliers Protection Act of 1995, Pub. L. No. 104-11 (May 18,
1995) (designating certain outlying sites as ``Chaco Culture
Archaeological Protection Sites''); Pub. L. No. 96-550, Tit. V (Dec.
19, 1980) (creating Park) (now codified at 16 U.S.C. 410ii-410ii-
7). But much of the Greater Chaco Region is not protected, and further,
many of the cultural resources in these unprotected areas have not been
surveyed and documented.
The Pueblo has joined together with others to protect the Greater
Chaco Region through all mechanisms available. It has engaged through
NEPA and the NHPA in DOI's efforts to amend the FLPMA resource
management plan (RMPA) that guides development decisions in the area--
although COVID-19 has now made meaningful tribal consultation on the
RMPA impossible. The Pueblo has also worked closely with DOI and
Congress to secure funding for a tribally-led cultural resource study
of the Greater Chaco Region, appropriated in the FY 2020 appropriation
legislation, which the Pueblo hopes will inform DOI's development
decisions. However, DOI provided only half of the funding appropriated
by Congress to the Chaco Heritage Tribal Association (CHTA), an
organization representing Pueblos and the Hopi Tribe, and thus
additional funding is needed to complete the study the Pueblos believe
DOI requires. Therefore, we urge Congress to appropriate additional
funding for the CHTA's study.
The Pueblo has also worked alongside a long list of stakeholders to
permanently protect a critical area of the Greater Chaco Region. It has
advocated for the Chaco Cultural Heritage Area Protection Act, S. 1079
and H.R. 2181, which would withdraw from future mineral development
federal land within an approximately 10-mile withdrawal area
surrounding the Chaco Culture National Historical Park, including its
outliers. The bill would explicitly preserve the rights of tribes and
allottees to develop on their land. In the interim, and while the
tribally-led cultural resource study remains pending, the Pueblo and
other stakeholders have worked alongside the New Mexico Congressional
delegation to secure a moratorium via the FY 2020 appropriation
legislation to prevent DOI from carrying out mineral leasing in the
withdrawal area pending completion of the study. Pub. L. No. 116-94,
Div. D, Title IV, Sec. 442 (2019); see also 165 Cong. Rec. 11281 (Dec.
17, 2019). We urge Congress to maintain this moratorium in future
appropriation legislation.
c. Tribal Historic Preservation Officers (THPOs)
Sacred sites are a vital part of our heritage, marking the paths of
our existence and shaping our worldviews as Pueblo People. In most, if
not all situations, the only way to identify these sacred sites, which
may exist miles from our present villages, is through Native eyes. We
must be involved in Section 106 and NEPA decisionmaking processes from
the outset. Otherwise, there is a heightened risk that outside
evaluators will misidentify sacred sites and contribute to the loss of
irreplaceable aspects of our cultural identity. We urge the Committee
to work with tribal leaders on identifying ways to strengthen
meaningful tribal involvement in these critical review processes.
In recent years, an increasing number of tribal governments have
established THPOs equivalent to state programs under the NHPA to lead
these activities. Federal funding, however, has not kept up with this
expansion. It is thus difficult for tribal governments to meet their
preservation compliance duties and responsibilities, which include
working with non-tribal governments on site identification, conducting
surveys, compiling data and samples, documenting best practices, and
assisting in museums and research centers that preserve and share
tribal material culture. The expansion of THPO positions across Pueblo
and Indian Country is a positive development in advancing tribal self-
governance and cultural sovereignty. Additional federal support for the
THPO program is needed, however, to facilitate this invaluable work.
d. Wildlife and Wild Spaces
In the Pueblo worldview, we are stewards of the earth's natural
resources-land, water, air, minerals, and wildlife. Acoma supports
policy and legislation that provides for the protection and management
of all these cultural and natural resources, as well as a requirement
for federal-tribal collaboration when these resources are affected in
any way. We support a policy that requires in-depth collaborative
efforts to arrive at mutual outcomes where natural resources on or near
tribal lands could be destroyed or diminished.
The effective management and conservation of our natural resources
is not limited to the waters, soil, and trees that form the rich
landscape of Pueblo Country. We must also account and appropriately
care for the diversity of wildlife that is meaningful to our culture
and essential to maintaining our ecosystems' equilibrium. Further, each
species possesses its own inherent value and should be protected by the
federal government. The Bureau of Indian Affairs Endangered Species
Program provides tribes with the technical assistance and financial
resources to protect endangered species on tribal lands through natural
resources restoration and management, as well as economic development.
This program, along with those housed within the Department of Fish and
Wildlife Services, will only continue to gain in importance as wildlife
habitats are disrupted and the effects of climate change threaten
species' welfare.
e. Climate Change
Climate change poses an existential threat to our Pueblo beliefs,
culture, and identity. Acoma is designated as a National Trust Historic
Site. As such, our Pueblo itself is recognized as a finite,
irreplaceable resource. The surrounding land and its natural resources
form the essence of who we are as Pueblo People across generations: our
origin stories are rooted in its geographic features, our contemporary
life finds sustenance in its flora and fauna, and our future
generations will shape their identity and dreams in the light of its
plateaus. This intimate relationship is replicated in tribal
communities across the country. For all of us, climate change poses a
disconcerting and tangible threat to the continued existence of our
traditional practices and unique cultural identities.
Across Pueblo Country, we have experienced the harmful effects of
major wildfires, droughts, and floods. Invasive species, drought
conditions, disappearing tree lines, intense wildfires, and accelerated
rates of erosion are also taking an increasing toll on our agricultural
and natural resources. The ecosystems and well-being of our environment
are being dramatically affected--and sometimes permanently altered--
with each new occurrence. We need only look to our sister Pueblo, the
Pueblo of Santa Clara, to see the fundamental changes wrought by
natural disasters heightened by climate change on the Santa Clara Creek
and Canyon ecosystems. It will take generations for Santa Clara's
traditional homeland and spiritual sanctuary to recover from the
devastation and, because of climate change, it is not clear how that
future will unfold.
Our Earth Mother is our homeland; it is the place we have been
entrusted with since time immemorial. We devote the resources we can to
the healing of our land to protect our community, and, through cultural
practice, we care for the vast landscapes beyond our Pueblo, the
oceans, air, water, and the sacred core of the Earth, however, we do
not have the resources to do it alone. The federal government must take
steps to effectively manage the meta-factors that drive climate
change--such as worldwide deforestation, fossil fuel consumption, and
greenhouse gas emissions--before it is too late. Acting on climate
change today is a moral and legal imperative, essential to all of us as
Pueblo People and Americans during a period of what now appears to be
almost inevitable rapid climate change.
Two critical but underutilized and underfunded federal programs can
help tribes in this existential battle. The DOI Tribal Climate
Resilience and Cooperative Landscape Conservation Programs equip tribes
with tools to manage resource stressors, develop adaptive management
plans, and engage in intergovernmental coordination. Access to these
resources is limited, however, by federal funding. Prioritization of
these programs would help us protect our homelands for future
generations.
II. Language and Arts
a. Esther Martinez
The Pueblo worldview is contained in our languages. In addition to
maintaining tribal life ways, we have established various programs and
methods in order to revitalize and preserve what are considered some of
the most ancient and distinct languages in America. Some Pueblo
languages are so unique they are not spoken anywhere else in the world.
The Esther Martinez Native American Languages Preservation Act is a
singular piece of legislation benefitting indigenous people and
communities. It has empowered tribes to make significant strides in
revitalizing Native languages across the United States. Biennial
evaluations by the Department of Health and Human Service, where Esther
Martinez programs are housed, show that grantees increase the abilities
of more than 4,000 youth and adults to speak a Native language on a
yearly basis. These same grantees train 170-280 Native language
teachers each year.
The Esther Martinez Act is also a potent tool for tribally-driven
programs to address the impacts of historical trauma on their
communities. Native language instruction and the implementation of
culturally based education programs are proven to be critical factors
in fostering community resilience and Native student confidence and
success in later years. For example, students in language immersion
programs demonstrate substantial improvement in their academic
performance and testing. Data shows that Native students excel in
S.T.E.M related subjects largely attributable to their language skill
set. Native languages offer a unique thought process and a way to
interpret the world and its interactions.
Our Native languages are the adhesive that holds our cultural,
religious and traditional beliefs together and enables those beliefs to
be passed on. As communities that have faced prolonged and insidious
efforts to eradicate our Native identities, the support offered by the
Esther Martinez Act should be maintained and expanded going forward.
Acoma urges this Committee to reauthorize the Esther Martinez Act to
strengthen indigenous cultural expression and facilitate the
transmission of Native languages to current and future generations.
b. Durbin Feeling Native American Languages Act of 2020
Acoma Pueblo supports S. 4886, the ``Durbin Feeling Native American
Languages Act of 2020,'' that would amend the Native American Programs
Act of 1974 to provide flexibility and reauthorization to ensure the
survival and continuing vitality of Native American languages. The
amendment would require the Administration for Native Americans (ANA)
to conduct a survey of Native languages. Key data to be collected would
include information on language vitality, current language
revitalization/maintenance practices, and unmet needs for advancing
these efforts, among other topics. Critically, the survey would have to
be designed in close consultation with tribal leaders and linguists to
ensure that data collection is completed in a culturally-sensitive
manner and with guarantees of ongoing tribal input on covered topics.
The survey would be conducted every five years and result in a
comprehensive report to Congress on the status of Native languages in
America.
To our knowledge, there is no federal entity engaging in regular
and compendious data collection or reporting on Native languages. S.
4886 would fill this informational gap. Access to linguistic data-
collected as it will be in a tribally-driven and culturally sensitive
manner--would help tribes in shaping their language revitalization
programs. It would also serve as a beneficial tool for ensuring that
federally funded Native language initiatives are receiving the
necessary funding and support to carry out their missions. We look
forward to working with the Committee on advancing this valuable piece
of legislation.
c. Administration for Native Americans
Since its establishment in 1974 pursuant to the Native American
Programs Act, the ANA has served as a valuable resource in helping
Native communities achieve their goals in self-sufficiency and cultural
preservation. The ANA provides discretionary grant funding for
community-based projects, as well as training and technical assistance.
The beauty of ANA grants lies in the control that is given to tribal
applicants in identifying an area of need within their community and
developing a plan of action to address it with federal funding. The
singular focus on community-based and community-driven projects that
promote the exercise of self-determination and cultural flourishing
makes the ANA unique within the federal system.
Acoma has over a decade of experience working with the ANA. Our
first award was a planning grant in 1996 to establish a community-based
language initiative known as the Acoma Language Retention Program. The
Program's focus was on re-strengthening the link between the Keres
language and Acoma cultural practices through an ambitious plan for
language revitalization aimed at younger generations in the community.
The community identified the widening disconnect between the number of
knowledgeable Keres speakers, particularly among Acoma youth, and the
level of engagement with our traditional cultural practices as a
critical issue. ANA provided financial support enabling us to establish
its first language program tasked with finding solutions to this issue.
The ANA was available to us as a resource throughout the grant
process. Critically, they limited their assistance to the technical
aspects of the grant, such as data analysis and reporting final
outcomes. It was left to Acoma to decide what was appropriate in
carrying out the Program's goals. ANA operates on the understanding
that tribal grantees have a specific vision for their communities and
know what will work best for them. It does not dictate how federal
funds should be used. Instead ANA grants are founded on and seek to
advance the expression of our sovereignty by focusing on project
outcomes and facilitating the realization of grantees' self-
determination goals. While other federal funding sources include self-
determination as one of many factors to be considered in a grant
application and implementation process, the ANA is one of the rare
federal partners that makes it the determinative factor in a grant
award.
The first generation of children to participate in two-week summer
language and culture immersion programs we subsequently developed with
ANA grant funds are now adults and parents. Many have become key
participants in the socio-cultural traditions of the Pueblo. Those of
us from the community have observed how those children have grown up
and been shaped by the availability of Keres cultural programming. Now,
the children of that first generation of beneficiaries have the
opportunity to participate in Keres language classes, both in the
community and in some local schools, are following in the footsteps of
their parents and relatives in being integrated into the cultural
practices and linguistic tradition of our community. We have been made
stronger from the inside because of it. The benefits of that original
ANA short-term planning grant continue to translate into long-term
positive gains for our community.
We have also been able to share the strength and beauty of our
community with others pursuant to an ANA Social and Economic
Development Strategies (SEDS) grant for the planning and development of
the Sky City Cultural Center and Haak'u Museum. Acoma Sky City is the
heart of our community. We have lived at our mesa-top home for at least
1,000 years, making it the oldest continuously inhabited community in
the United States. Acoma religious, cultural, and social life revolves
around Sky City, both on a daily basis and during times of ceremony.
ANA funding has been instrumental in preserving this cultural resource
for present and future generations. We encourage Congress to maintain
strong support for the ANA to help tribal nations achieve their long-
term linguistic and cultural goals, critical to the fulfillment of our
inherent responsibility.
d. Indian Head Start
Indian Head Start has been a vital part of Head Start since its
inception in 1965, and it is currently the most important and
successful federal program focused on the needs of Native youth and
families in early childhood education. Currently, Indian Head Start and
Early Head Start serves 22,379 children in more than 200 separate
programs across 26 states. Our programs are unique in that they tend to
be located in rural communities that are often affected by hardships
such as poverty, high rates of crime, limited or non-existent
transportation networks, and limited financial and qualified personnel
resources. Indian Head Start strives to address these challenges
through a focus on the whole individual--through education, health,
language, and culture--as well as on the whole family and community,
creating a vibrant and safe learning environment for our Native
children.
Indian Head Start is founded on a three-generational approach
provides an array of services tailored to meet the needs of children,
parents, and (increasingly) grandparents. For example, programs may
offer family nutrition or literacy workshops for parents and guardians.
For Indian Head Start, this model is especially important given the
critical role the program fills in addressing the unique needs of
Native children, parents, and communities. Indian Head Start supports
Native parents by providing access to job assistance trainings,
healthcare services, and a reliable source of safe and nurturing early
childhood education. Native children are empowered with self-esteem,
high quality educational services, safe space, and nutritional meals to
support their healthy development.
Further, through the integration of culturally and linguistically
appropriate classroom practices, Indian Head Start enables Native
communities to take the lead in preserving, revitalizing, and
reclaiming their heritage. This is achieved most commonly through the
integration of elders into the classroom. Elders are teachers and role
models in their communities who impart tradition, knowledge, culture,
and lessons--all of which have been proven to be key contributors to
Native student resiliency and success in later life. Further, for many
communities, elders represent the last stronghold of tribal languages
and traditions that were very nearly lost during the boarding school
and termination eras of federal Indian policy. Through Indian Head
Start we have been able to make tremendous strides in sowing the seeds
of language revitalization and educational success for present and
future generations.
III. Co-Management of Public Lands
The stewardship of land, minerals, water and other natural
resources is key to both the economic well-being of Pueblo People and
to our cultural survival. Every day, Acoma and sister Pueblos strive to
balance these interests.
The vast majority of federal lands are carved out of tribal
ancestral homelands. The historical and spiritual connection of tribes
to federal lands was never extinguished. Courts acknowledge that tribes
retain rights to hunt, fish, and gather on federal lands. Federal laws
acknowledge the continued right of tribes to access federal lands to
pray, conduct ceremonies, and gather medicinal plants. Federal laws and
executive orders also require federal land managers to consult with
tribal governments prior to taking action that would affect the
integrity of federal lands. For example, the Pueblo of Laguna worked
with the Department of Agriculture and the Forest Service as a
Cooperating Agency in the preparation of an Environmental Impact
Statement for the Cibola National Forest Plan Revision. Such beneficial
partnerships better ensure that tribal interests are taken into
consideration in the development of the federal land resource and
management plans.
In addition, there are existing federal laws that can facilitate
the successfully co-management of public lands to the advance of tribal
sovereignty. For instance, the Tribal Forest Protection Act (TFPA),
Pub. L. 108-278, provides authorities to tribal governments to co-
manage federal lands bordering or adjacent to tribal lands to better
protect trust and federal environmental resources from fire, disease,
and other threats. It also advances tribal and federal interests in the
development of land resource and management plans. Empowering tribal
governments as caretakers to protect tribal, trust, and federal
resources through co-management arrangements is a smart, cost-saving
policy. Yet, efforts to implement the TFPA's beneficial provisions have
been impeded. We recommend that Congress direct the Interior to
prioritize TFPA implementation within the U.S. Forest Service to
facilitate more beneficial partnership under this existing law.
IV. Government-to-Government Tribal Consultation
All interactions between the federal government and tribes lay over
the sacred government-to-government tribal consultation obligation. For
without adherence to this obligation, the federal government cannot
support our work to advance our tribal self-governance and cultural
sovereignty for future generations.
The United States has a duty to consult with tribes when it
undertakes any action that affects us, even when those actions are
aimed at aiding our exercise of sovereignty. This duty grows from our
status as sovereign governments, the government-to-government
relationship the United States carries on with each tribe, and the
trust obligations it owes.
In furtherance of its obligations, the Executive Branch has taken
on a duty to consult with tribes on federal policies that have tribal
implications. Exec. Order No. 13175, 65 Fed. Reg. 67249 (Nov. 9, 2000).
Each agency was called on to create its own consultation policy.
President Barack Obama, Memorandum for Heads of Executive Departments
and Agencies, re Tribal Consultation (Nov. 5, 2009) (setting forth
process for implementing Exec. Order No. 13175). DOI, for example,
enacted a tribal consultation policy under this mandate. Dep't of
Interior, Department of Interior Policy on Consultation with Indian
Tribes; see also DEP'T OF INTERIOR, Sec. Order No. 3317, DEPARTMENT OF
THE INTERIOR POLICY ON CONSULTATION WITH INDIAN TRIBES (2011). Further,
in many situations, such as under the NHPA, tribal consultation is also
statutorily mandated.
We urge the Committee to continue to engage in open and honest
dialogue with tribes as it pursues legislation and policies that affect
us. And we ask that you help those Members and Committees of Congress
less steeped in this sacred duty to understand their tribal
consultation obligations.
We also strongly recommend continued support for tribal advisory
committees at federal departments and agencies as a highly effective
means of advancing the government-to-government relationship and
providing substantive feedback on agency programs and policies
affecting Pueblos and Indian Country. Tribal advisory committees are
not a substitute for tribal consultation. They do, however, offer a
vital source of ongoing discourse on the development and implementation
of federal policies impacting tribal communities and people. They serve
to strengthen the government-to-government relationship and, when done
right, streamline the provision of federal programs and tribal services
to the long-term benefit of our communities and families. It must
continue as a driving force within the federal government going
forward.
Da'wa'eh; Thank you.
The Chairman. Thank you, Governor Vallo.
Now we will turn to the Honorable Kirk Francis, President,
United South and Eastern Tribes Sovereignty Protection Fund,
Nashville, Tennessee.
STATEMENT OF HON. KIRK FRANCIS, PRESIDENT, UNITED SOUTH AND
EASTERN TRIBES SOVEREIGNTY PROTECTION FUND
Mr. Francis. Good afternoon, everyone. I wish I could be
there with you in person. It is an honor to be here with you
all, Chairman Hoeven, Vice Chairman Udall, members of the
Committee. Thank you for this opportunity to provide testimony
on necessary advancements in the delivery of the trust
obligation, the promotion of tribal self-governance, and the
recognition of our inherent sovereignty.
We appreciate the forward looking nature of this hearing as
we continue to see change to our relationship with the United
States, change that will lead toa more appropriate, diplomatic
relationship for the 21st century.
My name is Kirk Francis, I proudly serve as the Chief of
the Penobscot Indian Nation in the State of Maine, and
president of the USET Sovereignty Protection Fund.
Before I begin, I would like to also acknowledge the Vice
Chairman's distinguished career. Mr. Vice Chairman, you have
been a consummate friend and partner to tribal nations,
committed to justice and progress for our people. On behalf of
USET, our family and quite frankly, all of Indian Country, we
thank you and honor you for your service.
As one of the most challenging years this Nation has seen
in generations draws to a close, Indian Country finds itself at
a turning point in our relationship with the United States.
2020 brought extreme challenges, sorrow and upheaval to tribal
nations and all across America. As COVID-19 tore through our
communities, our Country engaged in a reckoning with its past
and looked forward to a more honorable future. We have
consistently called upon the United States to fulfill its
sacred promises to tribal nations and to act with honor and
honesty in its dealings with us. But the pandemic has exposed
how Federal neglect and inaction have created the circumstances
facing tribal nations. The time is long overdue for a
comprehensive overhaul of the trust relationship and
obligations, one that results in the U.S. keeping its promises.
Though multiple advancements have been made due to a lot of
hard work by our friends on this call on Federal Indian policy
over the years, the 2013 VAWA amendments, the Progress Act and
other expansions of self-governance as well as economic
advancements. However, the deep and chronic failures facing
Indian Country cannot be addressed without bold, systemic
changes. For example, the full extent of our inherent
sovereignty continues to go unacknowledged, and in some cases
is actively opposed by other units of government, so as to
undermine the provision of essential services to our people,
including such vital services as public safety, as well as the
exercise of our cultures.
A gap in criminal jurisdiction stems from this failure to
recognize our inherent sovereignty, and tribal nations are
barred from prosecuting offenders. When the Federal Government
fails in its obligations, criminals are free to offend with
impunity.
Tribal nations must have full criminal jurisdiction over
our lands as well as the people on them through a fix to the
Supreme Court decision in Oliphant. Related, we again remind
this body that some tribal nations are living under restrictive
settlement acts that further limit our ability to exercise
criminal jurisdiction. We assert that Congress did not intend
these land claim settlements to forever prevent a handful of
tribal nations from taking advantage of beneficial laws and for
all of Indian Country. We continue to request the opportunity
to explore solutions to this problem with the Committee.
It is also incumbent upon all branches of the U.S.
Government to ensure the protection of sacred sites. This
includes seeking the consent of tribal nations for Federal
actions impacting their lands and people. Broadly, the U.S.
must work to reform the tribal consultation process. Meaningful
consultation requires that dialogue with tribal partners occur
with a goal of reaching consent.
As it is for any sovereign, economic sovereignty is
essential to Indian Country's ability to be self-determining
and self-sufficient. It is critical that the lack of government
parity be addressed, so that we may conduct economic
development activities for the benefit of our citizens. This
includes the advancement of reforms that would address
inequities in the tax code and eliminate things such as dual
taxation.
We also continue to call for parity for all tribal nations
in the restoration of tribal homelands. Despite the success of
the tribal nations exercising authority under the ISDEAA, many
opportunities still remain to improve and expand upon its
principles. An extension of tribal self-governance to all
Federal programs would be the next evolutionary step in the
Federal Government's recognition of our sovereign status.
Above all, the COVID-19 crisis has highlighted the urgent
need to provide full and guaranteed Federal funding to tribal
nations. In addition, much like the U.S. investment in
rebuilding European nations following World War II via the
Marshall Plan, the government should commit to a system in the
rebuilding of tribal nations, as our current circumstances are
directly attributable and tied to U.S. policies.
With a new year on the horizon, and as we look toward
recovery from COVID-19, USET calls upon Congress, the
Administration and the whole Federal Government to join us in
working toward a legacy of change for tribal nations.
It is again my honor to be here with other tribal leaders
and distinguished guests and members of Congress. I am happy to
answer any questions.
[The prepared statement of Mr. Francis follows:]
Prepared Statement of Hon. Kirk Francis, President, United South and
Eastern Tribes Sovereignty Protection Fund
Chairman Hoeven, Vice Chairman Udall, and members of the Senate
Committee on Indian Affairs, thank you for this opportunity to provide
forward-looking testimony on necessary advancements in the delivery of
the federal trust obligation, the promotion of Tribal self-governance,
and the recognition of our inherent sovereignty. We appreciate the
prospective nature of this hearing, as we continue to seek foundational
and systemic change to our relationship with the United States; change
that lead to a more appropriate, respectful, honorable, and modern
diplomatic relationship for the 21st century. I am Kirk Francis, Chief
of the Penobscot Indian Nation and President of the United South and
Eastern Tribes Sovereignty Protection Fund.
USET Sovereignty Protection Fund (USET SPF) is a non-profit, inter-
tribal organization advocating on behalf of thirty-three (33) federally
recognized Tribal Nations from the Northeastern Woodlands to the
Everglades and across the Gulf of Mexico. \1\ USET SPF is dedicated to
promoting, protecting, and advancing the inherent sovereign rights and
authorities of Tribal Nations and in assisting its membership in
dealing effectively with public policy issues.
---------------------------------------------------------------------------
\1\ USET SPF member Tribal Nations include: Alabama-Coushatta Tribe
of Texas (TX), Aroostook Band of Micmac Indians (ME), Catawba Indian
Nation (SC), Cayuga Nation (NY), Chickahominy Indian Tribe (VA),
Chickahominy Indian Tribe-Eastern Division (VA), Chitimacha Tribe of
Louisiana (LA), Coushatta Tribe of Louisiana (LA), Eastern Band of
Cherokee Indians (NC), Houlton Band of Maliseet Indians (ME), Jena Band
of Choctaw Indians (LA), Mashantucket Pequot Indian Tribe (CT), Mashpee
Wampanoag Tribe (MA), Miccosukee Tribe of Indians of Florida (FL),
Mississippi Band of Choctaw Indians (MS), Mohegan Tribe of Indians of
Connecticut (CT), Monacan Indian Nation (VA), Nansemond Indian Nation
(VA), Narragansett Indian Tribe (RI), Oneida Indian Nation (NY),
Pamunkey Indian Tribe (VA), Passamaquoddy Tribe at Indian Township
(ME), Passamaquoddy Tribe at Pleasant Point (ME), Penobscot Indian
Nation (ME), Poarch Band of Creek Indians (AL), Rappahannock Tribe
(VA), Saint Regis Mohawk Tribe (NY), Seminole Tribe of Florida (FL),
Seneca Nation of Indians (NY), Shinnecock Indian Nation (NY), Tunica-
Biloxi Tribe of Louisiana (LA), Upper Mattaponi Indian Tribe (VA) and
the Wampanoag Tribe of Gay Head (Aquinnah) (MA).
---------------------------------------------------------------------------
Before I begin, I would like to acknowledge that this is the final
Senate Indian Affairs hearing of Vice Chairman Udall's distinguished
career. Mr. Vice Chairman--you have been a consummate friend and
partner to Tribal Nations, committed to justice and progress for our
people. Your dedication to upholding and advancing the trust obligation
and Tribal sovereignty is evident in your many accomplishments
alongside and on behalf of Indian Country over more than two decades of
federal service. While we are sad to see you leave Capitol Hill, USET
SPF extends our gratitude, support, and well wishes to you as you
continue on your journey. On behalf of our USET SPF family of Tribal
Nation, and all of Indian Country, we thank you and honor you for your
service.
Introduction
As one of the most challenging years this nation has seen in
generations draws to a close, Indian Country finds itself at an
inflection point in our centuries-long relationship with the United
States. 2020 brought extreme challenges, sorrow, and upheaval to Tribal
Nations and the whole of America. As COVID-19 tore through our
communities, our country engaged in a reckoning with its past and
looked toward a more honorable future. USET SPF has consistently called
upon the United States to deliver and fulfill its sacred promises to
Tribal Nations and to act with honor and honesty in its dealings with
Indian Country. But the global pandemic has exposed for the world to
see the extent to which generations of federal neglect and inaction
have created the unjust and untenable circumstances facing Tribal
Nations. The time is long overdue for a comprehensive overhaul of the
trust relationship and obligations, one that results in the United
States finally keeping the promises made to us as sovereign nations in
accordance with our special and unique relationship.
As Native people, we are called to not only act on behalf of our
people here today, but for those who came before us and those who will
come after us--the future of our nations. We must always remember this
mission as we work uphold, advance, and protect our sovereign rights
and authorities for generations to come. At a time when our nations are
facing great challenges, including existential threats, this charge
becomes all the more critical.
While some notable advancements have been made in federal Indian
policy over the last several years, the deep and chronic failures
facing Indian Country will continue to plague us without bold, systemic
changes. Centuries of neglect and dishonorable dealings, as well as a
relationship predicated on the demise of our governments and our
inability to self-govern, cannot be wiped away by working within the
parameters of a system built to work against our interests. It is long
past time that we create fundamental and lasting change to U.S.-Tribal
Nation relations in order to truly improve the delivery of federal
trust and treaty obligations. This includes the removal of existing
barriers that interfere with our ability to implement our inherent
sovereign authority to its fullest extent, without state and/or federal
interference, which, in turn, will position Indian Country to realize
its greatest potential.
Recognition of Inherent Tribal Sovereignty
Tribal Nations are political, sovereign entities whose status stems
from the inherent sovereignty we have as self-governing peoples, which
pre-dates the founding of the Republic. The Constitution, treaties,
statutes, Executive Orders, and judicial decisions all recognize that
the federal government has a fundamental trust relationship to Tribal
Nations, including the obligation uphold the right to self-government.
Our federal partners must fully recognize the inherent right of Tribal
Nations to fully engage in self-governance, so we may exercise full
decisionmaking in the management of our own affairs and governmental
services, including jurisdiction over our lands and people.
However, the full extent of our inherent sovereignty continues to
go unacknowledged and, in some cases, is actively restricted by other
units of government, including the federal, as well as state and local
governments. This serves to undermine the provision of essential
services to our people, including such vital services as public safety,
as well as the continuity and exercise of our cultures. This has
created a crisis in Indian Country, as our people go missing and are
murdered, and are denied the opportunity for safe, healthy, vibrant
communities and traditions enjoyed by other Americans.
Criminal and Civil Jurisdiction over our Homelands
One important reason for higher rates of crime in Indian Country is
the gap in jurisdiction stemming from the United States' failure to
recognize our inherent criminal jurisdiction, allowing those who seek
to do harm to hide in the darkness away from justice. When Tribal
Nations are barred from prosecuting offenders and the federal
government fails in the execution of its obligations, criminals are
free to offend over and over again.
The United States has slowly chipped away at Tribal Nations'
jurisdiction. At first, it found ways to put restrictions on the
exercise of our inherent rights and authorities. And eventually, as its
power grew, the United States shifted from acknowledging Tribal
Nations' inherent rights and authorities to treating these rights and
authorizes as grants from the United States. With this shift in
mindset, recognition of our inherent sovereignty diminished, including
our jurisdictional authorities.
For example, in the 1978 decision of Oliphant v. Suquamish Indian
Tribe, the Supreme Court struck what may be the biggest and most
harmful blow to Tribal Nations' criminal jurisdiction. In that case, it
held Tribal Nations lacked criminal jurisdiction over non-Native
people, even for crimes committed within Indian Country. Without this
critical aspect of sovereignty, which is exercised by units of
government across the United States, Tribal Nations are unable achieve
justice for our communities. While the United States has stripped
Tribal Nations of our own jurisdiction and the resources we need to
protect our people, it has not invested in the infrastructure necessary
to fulfill its obligation to assume this responsibility. As a result,
Indian Country currently faces some of the highest rates of crime, with
Tribal citizens 2.5 times more likely to become victims of violent
crime and Native women, in particular, subject to higher rates of
domestic violence and abuse. Many of the perpetrators of these crimes
are non-Native people.
More recently, the federal government failed to recognize a Tribal
Nation's sovereign right to protect its community from COVID-19. When
it became clear that the state of South Dakota was not going to
institute the public health measures necessary to control the spread of
COVID-19 within its borders, the Cheyenne River Sioux Tribe (CRST)
acted to protect its citizens by installing checkpoints on the highways
leading to its homelands. These checkpoints have been immensely
successful in identifying COVID and mitigating its spread in CRST's
community. However, when the Tribal Nation refused to remove the
checkpoints, the governor of South Dakota wrote to the White House and
Department of Interior (DOI) to request intervention. Despite its legal
obligation to uphold and defend Tribal sovereignty and self-governance,
DOI threatened to withdraw CRST's law enforcement funding if it did not
comply with the governor's request.
It is important to note that over the last decade, the federal
government has made some effort to better recognize Tribal Nation
jurisdiction over our own lands. USET SPF is appreciative of the
efforts of this body in strengthening and improving public safety
across Indian Country. Though many Tribal Nations remain unable to take
advantage of its provisions, the 2013 reauthorization of VAWA was a
major victory for Tribal jurisdiction, self-determination, and the
fight against crime in Indian Country. This law provides crucial
opportunities for Tribal Nations to reassume responsibilities for
protecting their homelands by restoring criminal jurisdiction over non-
Indian individuals in cases of domestic violence against Tribal
citizens.
However, Tribal Nations, the Department of Justice, and others are
reporting oversights in the drafting of the law that prevent the use of
special domestic violence criminal jurisdiction (SDVCJ) and the law
from functioning as intended. USET SPF remains strongly supportive of
several bills aimed at addressing these gaps, including the Justice for
Native Survivors of Sexual Violence Act and the Native Youth and Tribal
Officer Protection Act. Though their provisions we incorporated into
2019 VAWA reauthorization proposals, they, along with VAWA, have not
been approved by the 116th Congress.
As sovereign governments, Tribal Nations have a duty to protect our
citizens, and provide for safe and productive communities. This cannot
truly be accomplished without the full restoration of criminal
jurisdiction to our governments through a fix to the Supreme Court
decision in Oliphant. While we call upon this and the 117th Congress to
take up and pass the aforementioned legislation, we strongly urge this
Committee to consider how it might take action to fully recognize
Tribal criminal jurisdiction over all persons and activities in our
homelands for all Tribal Nations. Only then will we have the ability to
truly protect our people.
Restrictive Settlement Acts
As we work to ensure that Tribal sovereignty is fully upheld, we
again remind this body that some Tribal Nations, including some USET
SPF member Tribal Nations, are living under restrictive settlement acts
that further limit the ability to exercise criminal jurisdiction over
their lands. These restrictive settlement acts flow from difficult
circumstances in which states demanded unfair restrictions on Tribal
Nations' rights in order for the Tribal Nations to have recognized
rights to their lands or federal recognition. When Congress enacted
these demands by the states into law, it incorrectly allowed for
diminishment of certain sovereign authorities exercised by other Tribal
Nations across the United States.
Some restrictive settlement acts purport to limit Tribal Nations'
jurisdiction over their land or to give states jurisdiction over Tribal
Nations' land, which is itself a problem. But, to make matters worse,
there have been situations where a state has wrongly argued the
existence of the restrictive settlement act prohibits application of
later-enacted federal statutes that would restore to Tribal Nations
aspects of our jurisdictional authority, including VAWA and the Tribal
Law and Order Act (TLOA). In fact, some USET SPF member Tribal Nations
report being threatened with lawsuits should they attempt to implement
TLOA's enhanced sentencing provisions. Congress is often unaware of
these arguments when enacting new legislation. USET SPF asserts that
Congress did not intend these land claim settlements to forever prevent
a handful of Tribal Nations from taking advantage of beneficial laws
meant to improve the health, general welfare, and safety of Tribal
citizens. We continue request the opportunity to explore short- and
long-term solutions to this problem with this Committee.
Cultural Sovereignty
While the practice of spiritual and ceremonial traditions and
beliefs varies significantly among USET SPF Tribal Nations, our
spirituality is overwhelmingly place-based. From the Mississippi Band
of Choctaw Indians' Nanih Waiyah mounds to the ceremonial stone
landscapes of New England, each member Tribal Nation has specific
places and locations that we consider sacred. These places are often
the sites of our origin stories, our places of creation. As such, we
believe that we have been in these places since time immemorial.
Through these sites, we are inextricably linked to our spirituality,
the practice of our religions, and to the foundations of our cultural
beliefs and values. Our sacred sites are of greatest importance as they
hold the bones and spirit of our ancestors and we must ensure their
protection, as that is our sacred duty. As our federal partner in this
unique government-to-government relationship, it is also incumbent upon
all branches of the U.S. government to ensure the protection of these
sites, including by upholding our own sovereign action.
This includes seeking the consent of Tribal Nations for federal
actions that impact our sacred sites, lands, cultural resources, public
health, or governance. Broadly, the U.S. must work to reform the Tribal
consultation process, as conducted by agencies across the federal
government. Tribal Nations continue to experience inconsistencies in
consultation policies, the violation of consultation policies, and mere
notification of federal action as opposed to a solicitation of input.
Letters are not consultation. Teleconferences are not consultation.
Providing the opportunity for Tribal Nations to offer guidance and then
failing to honor that guidance is not consultation. Meaningful
consultation is a minimal standard for evaluating efforts to engage
Tribal Nations in decisionmaking. Ultimately, free, prior, and informed
Tribal consent, as described in the U.N. Declaration on the Rights of
Indigenous Peoples, is required to fulfill federal treaty and trust
responsibilities. The determination of what level of consultation is
required should come from Tribal Nations. Meaningful consultation
requires that dialogue with Tribal partners occur with a goal of
reaching consent as a true reflection of a nation-to-nation diplomatic
relations framework and understanding.
Economic Sovereignty
As it is for any other sovereign, economic sovereignty is essential
to Indian Country's ability to be self-determining and self-sufficient.
Rebuilding of our Tribal Nations involves the rebuilding of our Tribal
economies as a core foundation of healthy and productive communities.
We celebrate and acknowledge the recent passage of the Native American
Business Incubators Act and the Indian Community Economic Enhancement
Act, but there is more work to done here, as well. Building strong,
vibrant, and mature economies is more than just business development.
It requires comprehensive planning to ensure that our economies have
the necessary infrastructure, services, and opportunities for our
citizens to thrive; thus resulting in stronger Tribal Nations and a
stronger America. In order to achieve economic success, revenues and
profits generated on Tribal lands must stay within Indian Country in
order to benefit from the economic multiplier effect, allowing for each
dollar to turn over multiple times within a given Tribal economy. It is
critical that inequities and the lack of parity in policy and federal
funding be addressed for Tribal Nations in order to fully exercise our
inherent self-governance to conduct economic development activities for
the benefit of our Tribal citizens.
Further, the U.S. government has a responsibility to ensure that
federal tax law treats Tribal Nations in a manner consistent with our
governmental status, as reflected under the U.S. Constitution and
numerous federal laws, treaties and federal court decisions. With this
in mind, we remain focused on the advancement of tax reform that would
address inequities in the tax code and eliminate state dual taxation.
Revenue generated within Indian Country continues to be taken outside
its borders or otherwise falls victim to a lack of parity. Similarly,
Tribal governments continue to lack many of the same benefits and
flexibility offered to other units of government under the tax code.
Passage of comprehensive tax reform in 2017 without Tribal provisions
was unacceptable, and our exclusion was inconsistent with expressed
Congressional support to strengthen Tribal Nations. USET SPF continues
to press Congress for changes to the U.S. tax code that would provide
governmental parity and economic development to Tribal Nations.
Restoration of Tribal Homelands
Possession of a land base is a core aspect of sovereignty, cultural
identity, and represents the foundation of a government's economy. That
is no different for Tribal Nations. USET SPF Tribal Nations continue to
work to reacquire our homelands, which are fundamental to our existence
as sovereign governments and our ability to thrive as vibrant, healthy,
self-sufficient communities. And as our partner in the trust
relationship, it is incumbent upon the federal government to prioritize
the restoration of our land bases. The federal government's objective
in the trust responsibility and obligations to our Nations must be to
support healthy and sustainable self-determining Tribal governments,
which fundamentally includes the restoration of lands to all federally-
recognized Tribal Nations, as well as the legal defense of these land
acquisitions. With this in mind, USET SPF continues to call for the
immediate passage of a fix to the Supreme Court decision in Carcieri v.
Salazar.
Expansion and Evolution of Tribal Self-Governance
Despite the success of Tribal Nations in exercising authority under
the Indian Self-Determination and Education Assistance Act (ISDEAA), as
well as the recently enacted Practical Reforms and Other Goals to
Reinforce the Effectiveness of Self-Governance and Self-Determination
(PROGRESS) for Indian Tribes Act, the goals of self-governance have not
been fully realized. Many opportunities still remain to improve and
expand upon its principles. An expansion of Tribal self-governance to
all federal programs under ISDEAA would be the next evolutionary step
in the federal government's recognition of Tribal sovereignty and
reflective of its full commitment to Tribal Nation sovereignty and
self-determination. In the case of COVID-19 response, it would provide
for a streamlined and expeditious approach to the receipt and
expenditures of funding from across the federal government, and ensure
these resources can be utilized in ways that reflect the diversity of
Tribal governments.
USET SPF, along with many Tribal Nations and organizations, has
consistently urged that all federal programs and dollars be eligible
for inclusion in self-governance contracts and compacts. We must move
beyond piecemeal approaches directed at specific functions or programs
and start ensuring Tribal Nations have real decisionmaking in the
management of our own affairs and assets. It is imperative that Tribal
Nations have the expanded authority to redesign additional federal
programs to serve best our communities as well as have the authority to
redistribute funds to administer services among different programs as
necessary. To accomplish this requires a new framework and
understanding that moves us further away from paternalism.
Examinations into expanding Tribal self-governance administratively
have encountered barriers due to the limiting language under current
law, as well as the misperceptions of federal officials. USET SPF
stresses to the Committee that if true expansion of self-governance is
only possible through legislative action, the Committee and Congress
must prioritize legislative action on the comprehensive expansion of
Tribal self-governance. This will modernize the federal fiduciary
responsibility in a manner that is consistent with our sovereign status
and capabilities. As an example, in 2013, the Self-Governance Tribal
Federal Workgroup (SGTFW), established within the Department of Health
and Human Services (HHS), completed a study exploring the feasibility
of expanding Tribal self-governance into HHS programs beyond those of
IHS and concluded that the expansion of self-governance to non-IHS
programs was feasible, but would require Congressional action. However,
despite efforts on the part of Tribal representatives to the SGTFW to
attempt to move forward in good faith with consensus positions on
expansion legislation, these efforts were stymied by the lack of
cooperation by federal representatives. USET SPF urges the Committee
and Congress to use its authority to work to legislatively expand
Tribal self-governance to all federal programs where Tribal Nations are
eligible for funding, in fulfillment of the unique federal trust
responsibility to Tribal Nations.
Further, Congress and the Administration should consider
modifications to reporting requirements under ISDEAA and other methods
of funding distribution. The administrative burden of current reporting
requirements under ISDEAA including site visits, ``means testing,'' or
other standards developed unilaterally by Congress or federal officials
are barriers to efficient self-governance and do not reflect our
government-to-government relationship. While obtaining data around
Tribal programs is critical to measuring how well we as Tribal
governments are serving our citizens and how well the federal
government is delivering upon its obligations, Tribal Nations find
themselves expected to report data in order to justify further
investment in Indian Country. This runs counter to the trust
obligation, which exists in perpetuity. The data collected by Tribal
Nations must be understood as a tool to be utilized in sovereign
decisionmaking, not to validate the federal government's fulfillment of
its own promises.
Because funding for Tribal Nations is provided in fulfillment of
clear legal and historic obligations, those federal dollars should not
be subject to an inappropriate, grant-based mentality that does not
properly reflect our diplomatic relationship. USET SPF notes that
federal funding directed to foreign aid and other federal programs are
not subject to the same scrutiny. Grant funding fails to reflect the
unique nature of the federal trust obligation and Tribal Nations'
sovereignty by treating Tribal Nations as non-profits rather than
governments. We reiterate the need for the federal government to treat
and respect Tribal Nations as sovereigns as it delivers upon the
fiduciary trust obligation, as opposed to grantees.
Full Funding for Federal Fiduciary Obligations
The chronic underfunding of federal Indian programs continues to
have disastrous impacts upon Tribal governments and Native peoples.
Native peoples experience some of the greatest disparities among all
populations in this country--including those in health, economic
status, education, and housing. Indeed, in December 2018, the U.S.
Commission on Civil Rights issued the ``Broken Promises'' Report, which
found deep failures in the delivery of federal fiduciary trust and
treaty obligations. The Commission concluded that the funding of the
federal trust responsibility and obligations remains ``grossly
inadequate'' and a ``barely perceptible and decreasing percentage of
agency budgets.''
Above all, the COVID-19 crisis is highlighting the urgent need to
provide full and guaranteed federal funding to Tribal Nations in
fulfillment of the trust obligation. While we unequivocally support
budget stabilization mechanisms, such as Advance Appropriations, in the
long-term, USET SPF is calling for a comprehensive reexamination of
federal funding delivered to Indian Country across the federal
government. Because of our history and unique relationship with the
United States, the trust obligation of the federal government to Native
peoples, as reflected in the federal budget, is fundamentally different
from ordinary discretionary spending and should be considered mandatory
in nature. Payments on debt to Indian Country should not be vulnerable
to year to year ``discretionary'' decisions by appropriators. Recently,
some in Congress have called for mandatory funding for specific
agencies serving Indian Country. USET SPF strongly supports this
proposal, which is more consistent with the federal trust obligation,
and urges that this be realized via an entirely new budget component--
one that contains all of the funding dedicated to Indian Country. Not
only would this streamline access to these dollars, this mechanism
would reflect true prioritization of and reverence for America's trust
obligation to and special relationship with Tribal Nations. While some
will quickly dismiss this as unrealistic and untenable, when compared
against the value of the land and natural resources the United States
gained as part of the exchange, both voluntarily and involuntarily, it
becomes evident that it is really only a matter of will and desire.
Marshall Plan for Indian Country--Rebuild and Restore Tribal
Infrastructure
For generations, the federal government--despite abiding trust and
treaty obligations--has substantially under-invested in Indian
Country's infrastructure. While the United States faces crumbling
infrastructure nationally, there are many in Indian Country who lack
even basic infrastructure, such as running water and passable roads.
Now, the nation and world are witnessing the deadly consequences of
this neglect, as COVID-19 spreads through Tribal communities that are
unable to implement such simple public health measures as frequent hand
washing. The United States must commit to supporting the rebuilding of
the sovereign Tribal Nations that exist within its domestic borders.
Much like the U.S. investment in the rebuilding European nations
following World War II via the Marshall Plan, the legislative and
executive branches should commit to the same level of responsibility to
assisting in the rebuilding of Tribal Nations, as our current
circumstances are, in large part, directly attributable to the shameful
acts and policies of the United States. In the same way the Marshall
Plan acknowledged America's debt to European sovereigns and was
utilized to strengthen our relationships and security abroad, the
United States should make this strategic investment domestically.
Strong Tribal Nations will result in a strengthened United States. At
the same time, any infrastructure build-out, in Indian Country and
beyond, must not occur at the expense of Tribal consultation,
sovereignty, sacred sites, or public health.
Conclusion
With a new year on the horizon and as we look toward recovery from
the global pandemic, USET SPF calls upon Congress, the Administration,
and the whole of the federal government to join us in working toward a
legacy of change for Tribal Nations, Native people, and the sacred
trust relationship. This year has underscored the urgent need for
radical transformation in the recognition of our governmental status
and the delivery of federal obligations our people. We can no longer
accept the status quo of incremental change that continues to feed a
broken system. The federal government must enact policies that uphold
our status as sovereign governments, our right to self-determination
and self-governance, and honor the federal trust obligation in full. We
look forward to partnering with this Committee in an effort to advance
these policies in the remaining days of this Congress, as well as the
next.
The Chairman. Thank you, President Francis.
Now we will turn to John Echohawk, Executive Director,
Native American Rights Fund, Boulder, Colorado.
STATEMENT OF JOHN E. ECHOHAWK, EXECUTIVE DIRECTOR, NATIVE
AMERICAN RIGHTS FUND
Mr. Echohawk. Thank you, Mr. Chairman.
I am pleased to have the opportunity to testify today in
the Committee's oversight hearing. I am a citizen of the Pawnee
Nation of Oklahoma, and the co-founder of the Native American
Rights Fund, a non-profit national Indian legal defense fund
headquartered in Boulder, Colorado, which is celebrating its
50th anniversary this year.
We have been involved in most of the major Indian rights
cases over the years. I have been the Executive Director
continuously since 1977, and have testified before
Congressional committees many times over those years, including
the Senate Committee on Indian Affairs.
As we have already recognized, Senator Tom Udall, the Vice
Chairman of the Committee, is retiring from the Senate, and I
want to take this opportunity to recognize and honor him today.
He has done great work for Native Americans over his many years
of public service. I want to personally thank him for that.
I have known him for many years. I was the first Native
American law graduate from the University of New Mexico School
of Law in 1970, and Senator Udall is also a UNM Law graduate in
1977. I first met him when he was serving as Attorney General
of the State of New Mexico, at a meeting with the conference of
attorneys general. I have enjoyed working with him over the
years on Native American issues and wish him well.
We really appreciate all of the work that Senator Udall has
done with us over the last two sessions of Congress in trying
to secure passage of the Native American Voting Rights Act,
which he sponsored with many of you Committee members as
cosponsors.
As you know, the Native American Voting Rights Act would
establish the first of its kind Native American voting task
force to provide equal access to voter registration and polling
places, address the devastating effects of the 2013 Shelby
County v. Holder Supreme Court decision by restoring tribal
concurrence, affording equal treatment of tribal ids, requiring
language assistance, furnishing Federal election observers, and
requiring the Department of Interior to conduct annual voting
consultation with Indian Tribes.
Few Senators have shown the devotion to voting rights,
particularly the voting rights of Native Americans, that
Senator Udall has demonstrated over the years. In 2015, the
Native American Rights Fund created the Native American Voting
Rights Coalition, a coalition of national and regional grass
roots organizations, academics and attorneys, advocating for
equal access of Native Americans to the political process. It
was founded to facilitated collaboration between members on
coordinated approaches to the many barriers that Native
Americans face in registering to vote, casting their ballot and
having an equal voice in elections.
Our first two actions were to conduct the largest ever
survey of Native American voters, and conduct a series of nine
field hearings across Indian Country to identify barriers faced
by Native American voters. This resulted in thousands of pages
of hearing transcripts, evidence of voter suppression. Senator
Udall immediately identified this issue and began to draft the
Native American Voting Rights Act to address the common
barriers we identified. In so doing, he heard the voices of all
those who spoke up at field hearings and brought them to the
national stage. He heard them; he heard them and then did
something about it.
Senate Bill S. 739 was introduced by Senator Udall in 2019.
This year, the Senator continued to pursue this issue by
holding meetings and roundtables on the importance of the
tribal vote and barriers to voting in rural communities.
Joining the John Lewis Voting Rights Advancement Act, and
adding Native American specific provisions to that as well.
Just a few months ago, he led an effort urging the Department
of Justice to immediately address the mass closure of voting
locations in Native communities.
He has shown unfailing leadership on voting rights of the
most disenfranchised Americans. For that, the Native American
Rights Fund will be forever grateful.
The Native American Rights Fund represents the Ute Mountain
Ute Tribe, the Hopi Tribe, and Zuni Pueblo in litigation
challenging the President's diminishment of the Bears Ears
National Monument in southeastern Utah in 2017. These ancestral
lands of these tribes were protected as they requested when
President Obama established the Bears Ears National Monument in
2016, with the provision that recognized co-management of those
lands by the tribes and the Federal Government.
The tribes have sacred sites, former villages, burial
grounds and other cultural resources on these ancestral lands
now owned by the Federal Government that they would like to
help protect with their traditional knowledge. We appreciate
the support that Senator Udall and other members of this
Committee have given for the tribal co-management concept.
Finally, I want to conclude by thanking Senator Udall and
other members of this Committee for their recognition and
support of legislation that addresses the issue of missing and
murdered indigenous women. This is one of the most serious
issues in Indian Country. This Committee and this Congress is
to be congratulated for passing the Not Invisible Act and
Savanna's Act to ensure we finally address these important
issues.
That concludes my testimony. I will be pleased to answer
any questions that Committee members might have. Thank you.
[The prepared statement of Mr. Echohawk follows:]
Prepared Statement of John E. Echohawk, Executive Director, Native
American Rights Fund
I am pleased to testify in the Committee's oversight hearing today
titled ``From Language to Homelands: Advancing Tribal Self-Governance
and Cultural Sovereignty for Future Generations.'' I am a co-founder of
the Native American Rights Fund, the non-profit national Indian legal
defense fund headquartered in Boulder, Colorado, which is celebrating
its 50th anniversary this year. We have been involved in most of the
major Indian rights cases over the years. I have been the Executive
Director continuously since 1977 and have testified before
Congressional committees many times over the years, including the
Senate Indian Committee on Indian Affairs.
Senator Tom Udall of New Mexico, Vice-Chairman of this Committee,
is retiring from the Senate and I want to recognize and honor him
today. He has done great work for Native Americans over his many years
of public service and I want to thank him for that. I have known him
for many years. I was the first Native American graduate from the
University of New Mexico School of Law in 1970 and Senator Udall is
also a UNM Law School graduate. I first met him when he was serving as
Attorney General of the State of New Mexico, at a meeting with the
Conference of Western Attorneys General. I have enjoyed working with
him over the years on Native American issues and wish him well.
We really appreciate all of the work he has done with us over the
last two sessions of Congress in trying to secure passage of the Native
American Voting Rights Act which he sponsored with many of you
Committee members as co-sponsors. As you know, the Native American
Voting Rights Act would establish the first of its kind Native American
Voting Rights Task Force, provide equal access to voter registration
and polling sites, address the devastating effects of the 2013 Shelby
County v. Holder Supreme Court decision by restoring tribal
preclearance, affording equal treatment of tribal IDs, requiring
language assistance, furnishing federal election observers, and
requiring the Department of Justice to conduct an annual voting
consultation with Indian tribes.
Few Senators have shown the devotion to voting rights, particularly
the voting rights of Native Americans, that Senator Udall has
demonstrated over the years. In 2015, NARF created the Native American
Voting Rights Coalition, or NAVRC, a coalition of national and regional
grassroots organizations, academics, and attorneys advocating for the
equal access of Native Americans to the political process. It was
founded to facilitate collaboration between its members on coordinated
approaches to the many barriers that Native Americans face in
registering to vote, casting their ballot, and having an equal voice in
elections. Our first two actions were to conduct the largest ever
survey of Native American voters and conduct a series of nine field
hearings across Indian Country to identify barriers faced by Native
American voters. This resulted in thousands of pages of hearing
transcripts--evidence of voter suppression.
Senator Udall immediately identified this issue and began to draft
the Native American Voting Rights Act to address the common barriers we
identified. In so doing, he heard the voices of all those who spoke up
at the field hearing and brought them to a national stage. He heard
them, and then did something about it. Senate Bill S. 739 was
introduced by Senator Udall in 2019. This year, the Senator continued
to pursue this issue by holding meetings and roundtables on the
importance of the tribal vote and barriers to voting in rural
communities; joining the John Lewis Voting Rights Advancement Act and
adding Native-specific provisions to that as well; and just a few
months ago he led an effort urging the Department of Justice to
immediately address the mass closure of polling locations in Native
communities. He has shown unfailing leadership for the voting rights of
the most disenfranchised Americans and for that, the Native American
Rights Fund will be forever grateful.
The Native American Rights Fund represents the Ute Mountain Ute
Tribe, the Hopi Tribe, and Zuni Pueblo in litigation challenging the
President's diminishment of the Bears Ears National Monument in
southeastern Utah in 2017. These ancestral lands of these tribes were
protected as they requested when President Obama established the Bears
Ears National Monument in 2016 with a provision that recognized co-
management of those lands by the tribes and the federal government. The
tribes have sacred sites, former villages, burial grounds, and other
cultural resources on these ancestral lands now owned by the federal
government that they want to help protect with their traditional
knowledge. We appreciate the support that Senator Udall and other
members of this Committee have given to the tribal co-management
concept.
I want to conclude by thanking Senator Udall and other members of
this Committee for their recognition and support of legislation that
addressed the issue of missing and murdered Indigenous women. This is
one of the most serious issues in Indian country. This Committee and
the Congress is to be congratulated for passing the Not Invisible Act
and Savanna's Act this year which finally address these important
issues.
The Chairman. Thank you, Director Echohawk.
With that, I would turn to Senator Cantwell for the
purposes of an opening statement.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman, and thank you
for holding this very important hearing on self-governance and
sovereignty and the need to discuss in the next Congress how we
continue to make progress on this. I hope that the issue of a
Carcieri fix will also be discussed by some of our colleagues.
I am a big supporter of self-governance and the progress
our tribes have made on self-governance. We hear a lot from Ron
Allen, who has been one of our key witnesses many times talking
about how the Jamestown S'Klallam have continued to make
progress.
But having the ability to take land into trust for economic
purposes, one of my first colleagues, Senator Inouye, as chair
of this Committee, did phenomenal work on what now became the
development of an alliance between the Port of Seattle and the
Port of Tacoma, all enabled because the Puyallup Tribe was able
to take land into trust, change the waterway and actually
become the more dominant player in the Puget Sound area, all
because we gave them the ability to take land into trust and
negotiate with the city and the county in various ports. So I
hope we will get to that issue.
But if I could, on our departing colleague, the Vice
Chairman of the Committee, I want to thank him for his work
with you, Mr. Chairman, and the incredible focus that you both
have brought to this Committee over the last few years. I want
to thank Senator Udall, obviously, for his role in Savanna's
Act, as the chairman, Mr. Echohawk, just brought up. The fact
that for the State of Washington, we had the most, I think as a
percentage, missing and murdered indigenous women, this was a
very important priority for the Seattle Indian Health Corps.
They did a report that basically gave national attention to the
problem.
I want to thank you for your work and your work with the
Chairman on that important legislation.
I also want to thank you for your work that you helped us
on in passing the Spokane Settlement Resolution, which was a
long-time inequity that existed for the Spokane Tribe in not
being adequately compensated for a hydroelectric system and the
taking of their lands. It was a pretty incredible moment
working with my colleague, Representative McMorris Rodgers,
when we went to the Spokane Tribe.
There were actually a few people still alive that
remembered the day that their land was taken and flooded, and
the fact that they had to move. They were finally seeing a just
compensation from the U.S. Government. It was a pretty big
moment, and I thank you, and I thank you both for that.
I also thank you for working on this issue of broadband and
broadband deployment in Indian Country. I don't know what we
can do working altogether in the future. But this has to be a
big priority for us. So I thank you, Senator Udall, for your
leadership in coming to me and getting me, from the commerce
perspective, to be more engaged in working with you here on the
Committee.
And thank you for the Progress Act. Again, drawing it back
to today's hearing, I know that not everybody in Indian Country
thinks the same way about self-governance. But I do think that
the more we empower tribes on these issues of capacity to do
contract and ability to take matters to govern themselves, I
think we are seeing phenomenal results.
We are seeing phenomenal economic growth in Indian Country,
and I think that is what we want to see. We want to see the
economic stability of those individuals making their own self-
determination and us giving them the power and tools to do so.
So thank you for the Progress Act, and thank you, Mr.
Chairman, for the Progress Act.
I guess that is a way of saying I hate to break up this
team. But Senator Udall has made the decision. So I don't know
what else we can do but to wish him well and thank him for his
service. And thank you again, I think that was Mr. Echohawk
speaking, thank you for mentioning Bears Ears. The preservation
of sacred lands across our Nation is also a pretty important
objective for the future. I thank everybody for paying
attention to how important these specific lands are to the
heritage and culture of the United States of America.
I wish you the best. I wish you the best, the Senator from
New Mexico, our Vice Chairman, thank you for understanding
Indian Country and working so hard with our colleague, the
Chair, Senator Hoeven.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Cantwell. And thank you
for all the bills you worked on in a bipartisan way, and helped
pass a lot of bills. So thank you. We really appreciate it. You
really did a lot.
Senator Cantwell. Thank you.
The Chairman. With that, let's turn to our witnesses. I am
going to start with questions for Governor Vallo.
In 2019, along with Vice Chairman Udall, and others
introduced, including Senator Cantwell, the Progress for Indian
Tribes Act. Earlier this year, that bill was signed into law.
The Progress for Indian Tribes Act streamlined agency
procedures, clarified the compacting process, and most
importantly, provided for more tribes to exercise self-
governance and administer Federal programs.
But my question, Governor Vallo, would be, while this bill
was long overdue, and I echo Senator Cantwell's comments on it,
can you explain how the Progress Act is a good example of
increased self-determination for tribes, and any other thoughts
you have on that issue about how we can do more?
Mr. Vallo. Thank you, Mr. Chairman, for the question. We do
appreciate the passage of the legislation.
As you know, tribes are always looking to advance and take
advantage of the opportunity, when it is available, to be self-
determined, in all areas. I believe we have worked together to
inform and educate not only our Federal partners but others
beyond the Federal system of these goals, these objectives of
ours [indiscernible].
I think that the opportunities that are presented here are
significant. In fact, we now have an open door, so to speak,
and I think it gives us the opportunity to really mobilize a
much more streamlined process toward self-determination and
self-governance. The Pueblo of Acoma has maintained plans for
many, many years, various tribal councils have looked at these
opportunities. We are realizing the fruits of our labor.
What I do believe, however, is that we need to begin the
process of engagement with the appropriate Federal agencies to
ensure that they are aware of what these short and more
importantly, the longer-range plans are for our respective
tribal communities. I believe there is an opportunity for
intertribal discussion to occur on this subject, because we are
always learning from one another, and we have plenty of tribes
in this Country who have set a high bar in the way self-
governance can be achieved.
So we are always looking to those models. Any resources
that can be filtered down to our tribe to continue this
important work I think would also make a significant difference
in not only the mobilizing, but also executing these processes
and taking full advantage of opportunities presented in the
Progress Act.
The Chairman. Thank you.
I would like to turn to Chief Francis. You referenced
economic development in your comments, which I think is so
important. Of course, that is something we worked on in S. 212,
the Indian Community Economic Enhancement Act, or the ICEE Act.
It does things like waive the requirement for Native community
development financial institutions and without that match, that
is clearly going to free up money for tribes. It takes other
steps to really help with economic development in Indian
Country, which I think is so important.
So my question would be, do you believe bills like ICEE as
well as the Vice Chairman's Native American Business Incubators
bill represent good starts in helping to build tribal
communities? And what other examples or what other tools do you
think would be helpful?
Mr. Francis. Thank you for the question, Senator. I think
this is also a very important subject. In terms of tools, one,
obviously, we are very supportive of the Act and appreciative
of its passage. Any time we are looking to provide more tools
in Indian Country for economic success, given the extreme
challenges that we are faced with from the Department of
Treasury reports in terms of disparities with access to
financing, et cetera, to help build businesses within Indian
Country.
I would say a few things that, as we move forward, I think
it is going to be critically important that tribal governments
are given every tool possible in terms of access to financing
and capital coming from geographical locations that are often
challenged, challenges with broadband, a whole host of other
things that we know exist within Indian Country.
I will give two specific examples. The creation of
opportunity zones, for example, those opportunity zones where
the western governors did decide where those zones would be.
Every tribal nation in Maine was left out of those geographical
locations to be able to participate in that program.
But more importantly, I think, when we look at things like
the market tax credits and tribal set-asides in that area, if
we look at the overall allocation of new market tax credits
where often projects and development within Indian Country to
promote jobs and all those things don't typically fall into
that $200 million to $400 million range for a project, there
are lots of $6 million, $10 million, $15 million, projects that
just don't garner the attention in the open new market tax
credit pool.
So tribes are often left out. We have some experience with
that at Penobscot, without new elder facilities, et cetera. So
I think we have to take a long, hard look at programs with the
new market tax credit, make sure there are set-asides that help
disadvantaged communities where tribes can have access to
those. So access to capital, access to the programs that are
already out there, good programs that maybe unintentionally are
just leaving Indian Country behind.
The Chairman. Thank you, Chief.
We will turn to Vice Chairman Udall.
Senator Udall. Thank you, Mr. Chairman.
My grandfather, in a voting rights case, Levi Udall, wrote
``To deny the right to vote is to do violence to the principles
of freedom and equality.'' I wholeheartedly agree.
Mr. Echohawk, the Native American Rights Fund has done
excellent work highlighting the challenges that Native voters
face at the polls. Most recently, NARF's report, Obstacles at
Every Turn, Barriers to Political Participation Faced by Native
American Voters, details testimony from over 120 witnesses
about the difficulties they face when exercising their right to
vote in Indian Country. That is why I introduced the Native
American Voting Rights Act, to correct the decades-long
suppression of the Native vote.
It is more important than ever that we pass legislation to
ensure that the voices of Native communities in New Mexico and
across Indian Country are counted, not discounted.
I also joined Senator Klobuchar in writing a letter to the
Department of Justice outlining our serious concerns regarding
the mass closures of polling locations in tribal communities
due to the COVID-19 pandemic. We called for the DOJ to work
with tribal governments to find solutions to ensure the Native
vote is counted. Yet despite these challenges, data is showing
a large increase in Native vote turnout for the 2020 election.
John, what concerns has NARF or the Native American Voting
Rights Coalition heard from tribal communities about the 2020
election process?
Mr. Echohawk. Thank you for the question, Senator Udall.
Again, thank you for all your support of the Native American
Voting Rights Act.
Indian Country has come to understand that their right to
vote is under attack. They have come to realize that that must
be for some reason. Somebody doesn't want them to turn out. So
that has really lit a fire under them. The enthusiasm in Native
communities to turn out, why don't these people want us to
vote, it is for that reason we are going to show up and vote.
It may take extraordinary measures to do that, but our turnout
in the 2020 election was phenomenal. It made a difference in
some of these States.
That is just the way our people are. We are resilient. We
are determined. When we are attacked, we are going to resist
and we are going to fight back.
Senator Udall. John Echohawk, what can Congress do to
ensure that every Native vote is counted and not discounted?
Mr. Echohawk. We need the protections of the Native
American Voting Rights Act, because our right to vote is always
going to be under attack. There are people out there who do not
want us to vote. They are going to continue their efforts of
voter suppression. The Native American Voting Rights Act will
provide more protections for our right to vote going into the
future, so we won't have to face these issues again.
Senator Udall. Thank you.
Mr. Chairman, I would ask to enter NARF's report into the
record.
The Chairman. Without objection.
Senator Udall. Governor Vallo, I would want to ask you
about the indigenous-led conservation, coordination and co-
management with Federal public land managers. Millions of acres
of Federal public land are tribal homelands, home to important
cultural lands, caves, sacred sites and habitat for important
plants and wildlife.
I believe that it is time we rethink the way the Federal
Government works with tribes. It is not only important for
Federal land managers to work with tribes on land management
planning and decisions, but it is also a fundamental aspect to
upholding the Federal Government's trust and treaty
responsibilities.
We have a number of laws and processes that you mentioned
in your testimony, like NHPA, the National Historic
Preservation Act, and the Federal Land Policy and Management
Act, that require consultation. But often, the Federal
Government makes decisions beforehand and then attempts to
consult on those decisions with the tribes instead of working
on land use planning together and in the early part of the
process.
Governor, my question to you is, how can the Federal
Government make consultation more meaningful, especially when
dealing with sensitive areas like Chaco or Bears Ears, for
example? Should we build on existing processes, move to a co-
management model, or something else? What do you recommend?
Mr. Vallo. Thank you, Senator Udall, for that important
question. Some of us have, Mr. Echohawk and the Chief, and me,
spent a lot of time talking about this question. But it is an
important one as we realize that the last four years have been
quite a challenge in terms of the ways in which consultation,
for example, between tribes and Federal agencies, especially in
the areas of cultural resources and landscapes are concerned.
Acoma is and has been very vocal on this issue. What we
would like to see, Senator and members of the Committee, is
that there be an examination conducted of the existing
processes under Federal law. Clearly, within some of our
agencies, where local resources and landscapes are concerned,
the consultation process is very one-sided. Oftentimes we don't
have the opportunity to participate in the very early stages of
this process.
What I am referring to here is the development of what that
consultation process would look like [indiscernible]. It should
involve considerations of timing, and also making very clear
what the anticipated outcomes will be as it is [indiscernible]
these consultations.
We throw around the term ``meaningful'' so much these days,
a meaningful consultation. Well, we are not there, we are
definitely not there yet in terms of meaningful consultation.
But it has to be meaningful commitment between the Federal
Government and a tribe or tribes.
That leads to the meaningful consultation that also then
involves a process of active engagement [indiscernible] and
ensuring that the outcomes of consultation do in fact yield
positive outcomes, favorable outcomes for tribes as we continue
this work on protection and preservation of our cultural
resources. It is also then as co-stewards for the co-management
piece of that on our minds.
I think that is something that is I wholeheartedly support,
an examination of the existing processes, and whether or not
those processes for co-management can be enhanced to where
tribes and perhaps tribal preservation officers, maybe tribal
natural resource departments and management officials are
engaged more intimately in that process of the co-management of
the natural resources and land.
We definitely [indiscernible] cultural resources and
cultural landscapes are concerned [indiscernible] extending
that to consider [indiscernible] and landscapes is something
that we would definitely like to see.
The Chairman. Senator Cantwell?
Senator Cantwell. Again, thank you, Mr. Chairman, for this
hearing. Our witness brought up the fact that we needed a new
market tax credit set-aside. We have also been working on the
low-income housing tax credit program with an additional focus
and set-aside for Indian Country for housing. I wonder if the
witnesses could talk about the incredible opportunity there is
on both of these, what that would mean as far as the broader
impacts to the economy if we would use our tax credits more
specifically this way in Indian Country, and what else we need
to do to change that formula, so that either with a set-aside
or in the case of the low-income housing tax credit increase
that we have been trying to push on a Cantwell-Young bill, we
have been trying to specifically call out Indian Country. I can
see a lot of housing, very-needed housing being built in Indian
Country with the low-income housing tax credit.
So I don't know if any of the witnesses can speak to that.
Mr. Francis. I can, really quickly. Thank you, Senator, for
the question. In terms of low-income tax credit programs, at
Penobscot we have accessed those programs in the past, and they
have been hugely beneficial in terms of not only getting much
needed housing shortages addressed for some of our most
vulnerable populations, our elder group, et cetera. We just
built a new facility last year in partnership with Maine State
housing, utilizing a lot of these programs.
And so just in terms of the overall theme of the hearing
today in terms of recognizing sovereignty and all those things,
it doesn't come without its hiccups in terms of, when we talk
about a new market tax credit set-aside, for example. I think
some of the biggest challenges we have is when investors come
to the table, they want waivers of sovereign immunity. The
tribe has to assess those opportunities and make sovereign
decisions around those as we do with 638 contracts and a whole
list of other things.
But I think that financial institutions are not really
educated a lot about tribal structures, tribal governments,
tribal judicial systems, how we are rectifying grievances
within outside financing opportunities, et cetera within tribal
territories. So I think a new market tax credit, for example,
the question of set-aside would be important, because it can be
defined in a way that creates that understanding up front, and
also a direct understanding of where these dollars are supposed
to go and how they are supposed to benefit these disadvantaged
communities.
Senator Cantwell. How would you describe the lack of access
to capital otherwise?
Mr. Francis. Again, it is the same challenge, I think, out
there. Tribes are often faced with challenges about things like
simply providing collateral for loans and access to resources
to satisfy financial institutions, just by the nature of tribal
makeup. Obviously, banks can't repossess lands on tribal land,
as an example, and other things. So I think a lot of those
things create a lot of the misunderstanding in terms of how to
get this done.
One of the really good programs is the 184 program which
really had set up a structure to allow for the people for the
first time in our community over the last 10 years start to
have a robust home ownership market within tribal territory,
because of that program and the ability of tribes and others to
be involved to make sure those loans are guaranteed.
So I think when we talk about set-asides and new market tax
credit, or low-income housing or whatever it is, specifically
for Indian tribes, that is not just about wanting some special
program out there. It is a program within those set-asides that
can really address the uniqueness of the challenges and
obstacles there that tribes are facing.
Senator Cantwell. I think our legislation was an 30
percent, an additional 30 percent from where we are. My point
was, when you think about the crisis that exists in Indian
Country housing, it is pretty massive. The other changes that
you have for funding mechanisms I see are more limited.
Anyway, I think this is an area we need to think more about
the value of this. I think it is pretty high. I think it is a
good return, particularly for the economic development that
comes with housing. I would certainly say with the new market
tax credit we have seen tremendous benefits to the economic
development that comes with it.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Cantwell. We will turn to
Senator Cortez Masto.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you, Mr. Chairman, and thank
you all for this important discussion.
Before we get started, I apologize, I was on the Floor of
the Senate, so I wasn't able to be here for your opening
statements. So I too want to take a minute to recognize and
thank Vice Chairman Udall for his years of leadership on this
Committee, and for his commitment and service to our tribal
communities. It has been an honor to serve with you on this
Committee the past four years.
I want to thank you for your advice, your wisdom, your
mentorship, and the example that you have set for us through
your many years in Congress, in the Senate and on this
Committee. I also want to thank your staff for their dedication
in supporting this Committee's work. The tireless leadership in
working across the aisle, not just with Chairman Hoeven, but so
many members of the Committee, and our tribal leaders. You have
encouraged all of us truly to work together in a bipartisan
way. I thank you for that.
I am particularly thankful for your leadership and your
help in passing the Not Invisible Act and Savanna's Act that we
have heard about today, so important for our tribal
communities. But your achievements in the Senate stand as a
testament to the spirit of the west.
And as a western State, I so appreciate your voice, and
your commitment to our communities in the west, from conserving
and protecting our public lands to the Great American Outdoors
Act, a champion for the rights of Indian Country, from
empowering our tribal communities to introducing what we have
just been talking about, the Native American Voting Rights Act,
holding our Federal agencies accountable and ensuring vital
Coronavirus relief funds and safe care delivery reach those who
need it most during this horrific pandemic.
So whether it is through finding creative solutions, to try
and address the homework gap, to partnering with me on
introducing the E-Rate support for school bus wi-fi, or
fighting for quality housing, as we were talking about, through
reauthorization of the Native American Housing Assistance and
Self-Determination Act, your work here has led to tangible
benefits for Native communities in my home State of Nevada and
all across the Country.
So Senator Udall, I have no doubt that your legacy of
service here will continue to make a powerful impact on many of
our tribal communities for years to come. I am going to miss
you, my friend. But I look forward to the opportunity to work
with you in the future and do things with you as well. So thank
you for your commitment.
As we move on to the subject at hand, which is self-
governance, tribal consultation that is so necessary for
Federal agencies, we have talked about a number of issues that
clearly need attention for our tribal communities. One of them,
though, I do want to address as well. President Francis, I am
going to direct this question to you, because in your
testimony, you shared the importance of the 2013 reforms to the
Violence Against Women Act that allowed tribes to prosecute
certain domestic violence related crimes.
I wonder if you could share with us on how beneficial this
has been to the tribes, that it has been able to help them
implement special jurisdiction, and what it has meant for the
safety of the Native women in those communities.
Mr. Francis. Sure. Thank you for that important question as
well. The Violence Against Women Act is, in my mind, one of the
most historic acts that Congress has passed addressing a
horrific condition within Indian Country. Certainly, my tribe
is no less impacted by it than everyone else's. Those same
statistics ring true with us as they do with everyone else.
As I also talked about in my testimony, we live under a
land claims settlement act here that allows for challenges to
our jurisdiction by the State of Maine in almost every aspect
of our life. We were lucky that this past year we were able to
implement some provisions of VAWA. We had a really robust
domestic violence and sexual assault program and department
with great people. What we found was that we had, at a certain
time we would have hundreds of people we were servicing, but
yet those services and those victims weren't lining up with
things moving through the judicial process.
So what we were learning, prior to the implementation of
VAWA, was that victims, quite frankly, would either not trust
the system outside of the tribal system, or they were delayed
so long in kind of the rank and file process of a bigger State
court or Federal court that they would often be a year or two
years from that trauma and simply not want to relive it again.
Therefore, people are just not being held accountable.
So this act was extremely important, as with tribal law and
order, a whole host of other acts that this Committee has
supported. The mind set of local control is really the only way
to address these issues in a positive and impactful way. So for
the women of our tribe and for the women all across Indian
Country, this has been an extremely impactful, and I will speak
for our region, extremely impactful at that was passed, and
created a situation of trust and also of this kind of
assumption by tribal governments that they had no control over
this issue when it was existing right under our nose. So it has
provided for a lot of success in that area, and a lot of
victims are better off for it today and we have been able to,
more importantly, prevent more of that from happening.
Senator Cortez Masto. That is great to hear.
My time is up, so I will submit these questions for the
record. I am also curious as to what other improvements we can
make in this area for tribal governance when it comes to
addressing domestic violence issues in our tribal communities.
Thank you for this conversation.
The Chairman. Thank you, Senator Cortez Masto.
Now we will turn to Senator Smith.
STATEMENT OF HON. TINA SMITH,
U.S. SENATOR FROM MINNESOTA
Senator Smith. Thank you, Chair Hoeven. I too was on the
Floor of the Senate just a little while ago at the beginning of
this Committee to listen to our colleague Doug Jones' farewell
speech. So I am sorry I missed the beginning of this hearing.
Senator Udall, I just want to add my huge thanks to you.
You know that I grew up in New Mexico, I was born in New
Mexico. In fact, you've had a chance to meet my father, who
still lives in Santa Fe. In fact, my father graduated from the
University of New Mexico probably about 20 years before you
did. I didn't realize that you had that connection as well.
When I was growing up, I came from a politically active
family. The Udall name was truly political royalty in New
Mexico and all of the west. So when I discovered that I was
going to have the opportunity to serve with you in the United
States Senate, and especially to serve with you on the Indian
Affairs Committee, it has meant so much to me. It has great
resonance in my life and in my passion for environmental issues
and tribal justice issues now, as I have the blessing of
representing the great State of Minnesota.
So I am just so grateful for all of your work and time. I
know that we will continue to be friends for many years to
come. I will look forward to seeing you and Jill at the Shack
in Santa Fe when I am there visiting my father again and when
we can be out and be with our loved ones again. Thank you so
much for your service. I am so grateful.
I want to also thank our testifiers here today, Governor
Vallo, Chief Francis, and John Echohawk from the Native
American Rights Fund. I would like to tell you what I am
interested in hearing your perspective on. It relates to the
importance of teaching accurate Native history and culture in
our schools, especially in K through 12 education.
When I was growing up in Santa Fe, I remember vividly in
elementary school learning about the history of New Mexico, and
the long history of Native people in New Mexico, and also the
Hispanic culture in New Mexico, long before white people came
to that State. So my knowledge of that from when I was just a
little child has, I believe, always shaped my understanding of
the deep, rich history of this Country, especially as it
relates to Native people.
So I am very interested in knowing what your perspective is
on how better we can do this in our schools. I think this ties
directly to the importance of consultation, and tribal
consultation, as we figure out how well to do this. I am
working on a bill that has really been inspired by some of the
work of the Shakopee and Wahpeton Sioux community in Minnesota
to develop curriculum to teach about Native American history
and culture. This bill would support educators as they are
teaching accurate history and culture in classrooms across the
Country and figuring out how to also make that specific.
Could I just turn to you and ask you a little bit about
what you think we should be doing in this area and why you
think this matter? I am interested in hearing from all of you.
Mr. Vallo. Thank you for the question, Senator. It is an
important question and one that we have a very proactive
interest in addressing here in the State of New Mexico.
We have had some challenges in terms of having the
opportunity to really consult on a meaningful level with the
State department of education on the assessment of this
component of history, New Mexico history, and how these
accurate histories become introduced into the instruction at
all levels, really, not only for the general population of our
students but also for all Native American students, and
expanding the instruction for them as well beyond history, but
also integrating and seeing a true integration of cultural
instruction within our public school systems and also our local
schools, in the schools that we have the opportunity to manage
on our own.
We have provided the State with plenty of guidance, I
believe. I am not only speaking for Acoma; I am speaking for
the tribes here in New Mexico. We have worked together as a
body to bring those issues before our State department of
education. We have made some progress, I believe, in some
areas, especially where the introduction of language is now
available for Native students within some of our school
systems. But there is so much more to do.
[Indiscernible] issues that we are [indiscernible] in New
Mexico is bring some closure to impact aid and how those
Federal impact aid dollars generated by Native students filters
down to the school districts, those districts who have a
population that is generating these dollars. Unfortunately, we
have not had a great relationship with the State in addressing
and really bringing some closure and understanding to this
issue. But here is a resource, a resource that is available to
really enhance the cultural instruction and education, not only
for our Native students, but for the general population.
So I feel like we are still in that discussion mode and
really taking a broad look at things. I hope that with
continued support of the Native American Languages Act, and the
Esther Martinez Act, what we are finding is that there is a
little trickle-down from these programs that are being
administered in schools now that is impacting cultural
education for our students.
Senator Smith. Mr. Chair, I have another question, but I
will follow up with our other guests today, because I am very
interested in getting their input on this piece of legislation
and working on it. Thank you very much.
The Chairman. Thank you, Senator Smith.
With that, we will turn to Senator Tester.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman. I want to thank
the folks who testified today. I too was on the Floor listening
to Senator Jones' farewell speech. It was good, and I want to
spend a little bit of my time talking about another Senator
that is going to be leaving this body, unfortunately, and that
is Senator Udall. Senator Udall is somebody that, quite
frankly, has not only been a great Senator, but has been an
incredible friend to many of the Native Americans across this
Country.
Having been on leadership of this Committee, I can tell you
from my perspective, Senator Udall has never missed a beat when
it comes to making sure that things like sovereignty and trust
responsibilities and self-determination, that we do our best to
live up to those things when it comes to Native Americans.
There are a lot of folk who serve with the United States Senate
that don't understand trust responsibility and that trust
relationship. You can't say that about Senator Udall. Senator
Udall fully understands it and fights for it every day that he
is here.
I know that it drives him crazy when I refer to him as the
Jimmy Stewart of the U.S. Senate. But the truth is, if you
listen to him talk, and use your imagination a little bit, he
is a dead ringer for Jimmy Stewart. In fact, I think that if
you were able to work on your imitation a little better, we
might be able to get a recreation of It's A Wonderful Life from
you, Senator Udall.
[Laughter.]
Senator Tester. I just want to say, in this path that we
live called life, and our path crosses with wonderful people
and we get a chance to work with them, whether it is inside the
Senate or outside the Senate, it doesn't matter. Those folks
tend to go a different path than we are on.
Well, for the last eight years, Senator Udall and I have
had the chance to serve together in the United States Senate. I
know you come from a great lineage of public servants, Tom.
Your dad, Stuart Udall, was one of the finest, there is no
doubt about that. He is, as Senator Smith said, truly legendary
across the western United States.
But the truth is, you filled his shoes very, very well. You
are somebody that is going to missed not only in the Indian
Affairs Committee, I serve with you on Appropriations, and I
know you are Ranking Member and Chair, which also deals with
many issues that deal with Native Americans. You have been a
marvelous friend and person that I can joke with and have some
fun with on all the committees that we serve together,
Appropriations and Indian Affairs for sure.
I just want to say we wish you and Jill the very, very best
as you carve out another path in life. I will just be blunt: I
hope the Administration picks you for Interior. I think you are
a great human being for that. I think you understand the
issues. Quite frankly, I think you are somebody that would
serve the Administration very, very well as being a clear
thinker with common sense.
So I just wanted to throw that out there. We are going to
miss you, Tom, my friend. But hopefully you will not be a
stranger to the United States Senate.
I have one quick question. I have more than one, but one
quick question that has come up, and it is for Kirk. It is
about access to capital in Indian Country. You talked about
collateral not being there, you talked about the 184 programs.
Are there any solutions we need to do, particularly, I want to
talk about for business startups, when it comes to access to
capital in Indian Country? Do you have any ideas that we can
work on and get a bill together and maybe name it the Tom Udall
Bill for Economic Development in Indian Country?
Mr. Francis. Yes, certainly, thank you for that question,
Senator. It is good to see you.
I think there are a lot of specific things we could do. I
think I would like to take some time to work with my colleagues
at USET, to work with the Committee on exactly what that would
look like. But I think even though we have these programs out
there, like the BIA loan guarantee program, for example, there
is a lot of different information out there that we can draw
from to try to create a program that really puts financial
institutions' not only minds at ease, but incentivizes them to
invest in Indian Country.
I think those are the important things, as we need to
figure out a way to get financial institutions to look at
Indian Country and to look at the territories within Indian
Country as a solution around a whole host of things rather than
an encumbrance or a burden.
So I think a strong bill developed with those kinds of
guarantees and incentives for tribes and incentives for
businesses would be the way to go. We would be more than happy
to work with you on that in short order.
Senator Tester. Well, I just want to say this, and I will
put the rest of my questions in for the record. I also serve on
the Banking Committee. There are a lot of folks, at least in my
State, that serve in the financial industries that want to get
out there to Indian Country. But as you said, they want to make
sure they know the rules before they get there.
So I look forward to working with you, and I know there are
others on this Committee that would, too, on trying to find
some solutions to access to capital. Because I think it is a
big inhibitor in Indian Country.
Thank you all for being here. Once again, thanks for being
with us here, Senator Udall. I yield.
The Chairman. Thank you, Senator Tester. I would turn to
Vice Chairman Udall for some additional questions.
Senator Udall. Thank you, Mr. Chairman. I would like to
follow up with a final question for all the panel. It focuses
around President Francis, that your testimony discussed a
Marshall Plan for Indian Country in order to rebuild and
restore tribal infrastructure.
I have long fought to increase vital infrastructure funding
in Indian Country and in Native communities. Too often they
lack basic infrastructure, such as clean drinking water, roads,
health care facilities, electricity grids, and broadband. Even
before my time with this Committee, I had urged support for a
Marshall Plan for Indian Country.
While I am proud of the work I have done with my colleagues
on this Committee and on the Appropriations Committee to
increase infrastructure investments in Indian Country, I
recognize there is much more that needs to be done.
This question is for the entire panel, but let me start
with Chief Francis. What priorities should be addressed in an
Indian Country Marshall Plan?
Mr. Francis. Thank you, Senator, and again, I appreciate
the very important question.
USET SPF has been talking about trust modernization and the
concept of a Marshall Plan, et cetera, for a few years now.
This is really focused on nation rebuilding. So it is hard to
give one answer in terms of what the most important thing is
because the past actions and policies that are responsible for
the current situation within the governments and communities, a
Marshall Plan for Indian Country would seek to rectify all of
that.
This would include funding for governmental and judicial
infrastructure, historic preservation, economic infrastructure,
health care infrastructure, all those things would have to be
assessed. Essentially everything that is needed to begin this
nation rebuilding stage decades from being in the self-
governance era.
So we understand that this is not going to happen
overnight. We all know that. But there needs to be a plan
developed that has meaningful progress over the next decade or
so that really focuses on what are the systematic damages
within Indian Country, and being able to quantify all that
stuff and really put it into a comprehensive plan that focuses
on what does the number look like.
That is the other thing. I think the other important part
of this question too in terms of, how do you get to a number
and all of that. We looked at, for example, this situation over
at OMB. We have to do a much better job of tracking exactly how
well the trust obligation to Indian tribes is being met and
what is the starting line, the actual detailed accurate
starting line.
So we would recommend things initially in development of
this plan like an Indian Office of OMB that can really drill
down in better detail exactly what is getting to Indian
Country. We know that OMB touts that $21 billion is
appropriated for Indian Country annually.
None of us believes that $21 billion is getting out to
Indian Country. We think this is what is available, and it
looks eligible to be in Indian Country. But even if we took
that $21 billion number, for example, that is one-tenth of 1
percent of the annual value that the United States receives on
Federal lands and the natural resources on them.
So there is a lot that would go into developing this plan.
I have appreciated your willingness to have this conversation.
There are pieces that need to be put in place to start
addressing this and to develop a comprehensive plan over the
coming years that really gets at reparations within Indian
Country to allow for continued success and rebuilding of tribal
nations.
Senator Udall. John Echohawk, any thoughts on Indian
Country Marshall Plan?
Mr. Echohawk. Yes, Senator Udall. As you know, the United
Nations passed the Declaration of Rights of Indigenous Peoples
in 2007, after nearly 40 years of work by indigenous people
from around the world, it was [indiscernible] over in Geneva.
It is a wonderful document that recognizes everything that
Native nations want and need, and are their inherent rights.
But we still need the implementation of that declaration across
the board.
If that was implemented, that would be a Marshall Plan. The
Obama Administration got the United States to support the
declaration in 2010, and it has not been fully implemented.
Recognition of that, the National Congress of American Indians
passed a resolution at their convention here last month
recommending to the new Biden-Harris Administration that they
establish a commission to study the full implementation of the
Declaration of the Rights of Indigenous Peoples by the United
States government. If that commission was formed, it started
working on everything this Country needs to do to implement
that declaration, that would constitute in my view a Marshall
Plan that would bring back Indian Country to the position that
it deserves to be in, based on its inherent rights.
Senator Udall. Thank you.
Governor Vallo, any thoughts on a Marshall Plan for Indian
Country, an Acoma perspective there?
Mr. Vallo. Thank you, Senator. I would just say that this
pandemic and the experience that we are all having is certainly
bringing to light again for us the need for development of
[indiscernible] but the communities, certainly here in Acoma. I
would fully support this initiative and I thank you for raising
this. If there is more data now that is available
[indiscernible] we should be again looking at this
comprehensive initiative, and perhaps a commission as described
by Mr. Echohawk for evaluation of the Declaration. In addition
to the Declaration, there might be a similar process for
addressing this effort and the creation of a Marshall Plan that
is all inclusive and very comprehensive.
Senator Udall. Thank you, Mr. Chairman, and thank you to
all of our witnesses today. I think this was an excellent
hearing. I really want to say thanks again for the very kind
words of all the members on the Committee. It has been a real
honor to work with them, and work with tribes to make sure we
have brought justice to some of the important issues, as you
know, that we face and the tribes face in Indian Country.
Thank you very much.
The Chairman. I would like to thank our witnesses for
today. The hearing record will be open for two weeks, and if
there are additional questions submitted for the record, we
would ask that you try to respond within that two-week
timeline.
So thanks to our witnesses. To Vice Chairman Udall, I
thought all of the well wishes and the compliments that you
received from our Committee members today were extremely
appropriate.
I think I particularly liked Senator Tester's Jimmy
Stewart, Mr. Smith Goes to Washington. I hadn't necessarily
thought of that, but once he said it, I think he is right. I
mean that in a really complimentary way.
I think we really have worked to be bipartisan here. We
have moved a lot of bills. We are still trying to outline some
more.
I want to add, again, my appreciation to the appreciation
that the other Committee members provided today for the way you
have approached the work of this Committee and for your
commitment to Indian Country. Thank you so much.
And with that, we are adjourned.
[Whereupon, at 4:20 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Brian Schatz, U.S. Senator from Hawaii
Mr. Chairman,
Although I am unable to stay, I don't want to leave without
expressing my deep appreciation to Vice-Chairman Udall. Today's hearing
in the Senate Committee on Indian Affairs is our last hearing of the
year, and it will mark the last hearing that we will have with Senator
Udall as our Vice-Chair.
I'd like to take a few moments to thank Senator Udall for all he
has done for tribes and native communities across the nation, and
especially for his work on behalf of Native Hawaiians. Thank you Tom-
for your leadership and your friendship.
This Committee has always held a distinct position in the Senate.
The legal and policy issues we grapple with as we try to honor our
promises and lift up American Indian, Alaska Native and Native Hawaiian
communities are unique and yet universal. There is great diversity
among the indigenous groups of our nation and oftentimes significant
differences among tribes and native communities located in the same
state. Almost every issue requires us to try to understand a myriad of
historical, cultural, legal, and economic issues as well as to take
into account distinct factual considerations. Balancing competing
interests is never easy, but Senator Udall, you have exemplified what
it means to be a leader. I have appreciated the thoughtful and
inclusive way that you approach policymaking, and the deep sense of
fairness that informs you words and actions.
You have helped to maintain and build upon the strong tradition of
bipartisanship associated with the Senate Committee on Indian Affairs.
Thank you for serving so well this committee, our members, our
constituents, and all native communities in Indian country, Alaska and
Hawaii. At this time I ask that letters of appreciation to Senator
Udall written by Native Hawaiian organizations be included in the
hearing record. I would also ask for testimony provided by the Office
of Hawaiian Affairs on today's hearing, as well as documents prepared
by the Office of Hawaiian Affairs and other Native Hawaiian
organizations for Senator Udall and SCIA during the 116th Congress, be
inserted at the end of my statement.
Finally, today I want to join my other colleagues in congratulating
you on a well-deserved retirement after twelve remarkable years of
service in the Senate. You have built an exemplary record of
accomplishment through your work on this committee, the impacts of
which have been felt all over Indian country, Alaska and Hawaii, and
will continue to be felt for generations to come.
My best to you always, Tom. I know we haven't seen the last of you
yet, and I can't wait to see what you do next.
______
Prepared Statement of the State of Hawai'i, Office of Hawaiian Affairs
(OHA)
Dear Chairman Hoeven, Vice Chairman Udall, and Members of the
Senate Committee on Indian Affairs:
Mahalo nui loa (Thank you very much) for your leadership in the
116th Congress. The Office of Hawaiian Affairs (OHA) appreciates the
opportunity to provide testimony for the record of the December 9,
2020, Oversight Hearing on ``From Languages to Homelands: Advancing
Tribal Self-Governance and Cultural Sovereignty for Future
Generations.'' This hearing topic provides a valuable forum to discuss
the importance of self-determination to all Native American people,
including American Indians, Alaska Natives, and Native Hawaiians.
Self-determination--the right of Indigenous people to chart our own
course--supports the cultural sovereignty of the Native Hawaiian people
and advances the mission of OHA to better the conditions of the Native
Hawaiian community. The federal government owes a trust responsibility
to all Native American people that it carries out through the self-
determination framework. We thank the U.S. Senate Committee on Indian
Affairs for its work to ensure the rights of all Native people,
including Native Hawaiians, are protected. We urge the Committee to
continue to include the Native Hawaiian community in its work to meet
this obligation in its consultation policies and legislative proposals,
including but not limited to the areas of culture and languages;
climate change; health care and the federal response to the Novel
Coronavirus Disease (COVID-19) pandemic; and preventing and stopping
violence against women and children and child sexual exploitation.
Background on OHA and Its Standing to Represent Native Hawaiians
Established by our state's Constitution, \1\ OHA is a semi-
autonomous agency of the State of Hawai'i mandated to better the
conditions of Native Hawaiians. Guided by a board of nine publicly
elected trustees, all of whom are Native Hawaiian, OHA fulfills its
mandate through advocacy, research, community engagement, land
management, and the funding of community programs.
---------------------------------------------------------------------------
\1\ Haw. Const., art. XII, 5 (1978).
---------------------------------------------------------------------------
Hawai'i state law recognizes ORA as the principal public agency in
the state responsible for the performance, development, and
coordination of programs and activities relating to Native Hawaiians.
\2\ Furthermore, state law directs OHA to advocate on behalf of Native
Hawaiians; \3\ to advise and inform federal officials about Native
Hawaiian programs; and to coordinate federal activities relating to
Native Hawaiians. \4\
---------------------------------------------------------------------------
\2\ Haw. Rev. Stat. 10-3(3).
\3\ Haw. Rev. Stat. 10-3(4).
\4\ Haw. Rev. Stat. 10-6(a)(4).
---------------------------------------------------------------------------
Trust Responsibility Owed to All Native Americans
Native Hawaiians are owed the same trust responsibility as any
other Native American group. To meet this obligation, the federal
government has created policies to promote education, health, housing,
and a variety of other federal programs that support self-
determination. Similar to many American Indians and Alaska Natives,
Native Hawaiians have never relinquished our right to self-
determination despite the United States' involvement in the illegal
overthrow of Queen Lili'uokalani in 1893; the subsequent dismantling of
our government; and the repeated attempts to erase our culture. In
fact, Congress has consistently acknowledged or recognized Native
Hawaiians as the Indigenous people of Hawai'i by establishing a special
political and trust relationship through over 150 laws. Some notable
legislation include the Hawaiian Homes Commission Act, 1920 (42 Stat.
108) (1921), the Native Hawaiian Education Act (20 U.S.C. 7511)
(1988), the Native Hawaiian Health Care Improvement Act (42 U.S.C.
11701) (1988), and the Hawaiian Homelands Homeownership Act codified in
the Native American Housing Assistance and Self Determination Act,
Title VIII (25 U.S.C. 4221) (2000).
As Congress holds the plenary power to exercise its duties to
regulate Indian Affairs, it is Congress who decides how and to whom
that special relationship is owed. Through enacted laws to implement
the trust responsibility to Native Hawaiians, Congress has explicitly
acknowledged that the grounds for these programs are rooted in the
status of Native Hawaiians as an Indigenous, once-sovereign people.
Moreover, whenever possible, Congress extends to Native Hawaiians the
rights and privileges accorded to American Indians and Alaska Natives.
Some examples where Native Hawaiians are included alongside American
Indians and Alaska Natives are the Native American Graves Protection
and Repatriation Act (25 U.S.C. 3001), the Native American Programs
Act of 1974 (42 U.S.C. 2991), the Older Americans Act of 1965 (42
U.S.C. 3001), and the Native American Tourism and Improving Visitor
Experience (NATIVE) Act (25 U.S.C. 4351). Since Congress has clearly
established a special relationship to Native Hawaiians, this Committee
holds the jurisdiction to ensure that the federal government implements
the trust responsibility fully and equally to all Native Americans,
including American Indians, Alaska Natives, and Native Hawaiians.
As we close the 116th Congress, we thank you for your work to
uphold the trust obligations owed to all Native Americans, and we look
forward to the 117 th Congress as an opportunity to renew the federal
government's commitment to honoring this trust responsibility.
Consultation Policies as Part of the Foundation of Self-Determination
Policies
One of the most critical safeguards of Native American self-
determination today is the mandatory federal consultation policy. Under
Executive Order 13175 of November 6, 2000, and subsequent memoranda
from the George W. Bush and Barack Obama Administrations, the U.S.
Government recognizes the right to sovereignty and self-determination
of this country's Native people. While this is a step in the right
direction, the omission ofNative Hawaiians from the federal
consultation requirements has unduly stifled the Native Hawaiian
community's voice in federal projects for the past two decades.
Ensuring Native Hawaiians are informed of proposed actions and have
an open line of communication with all federal agencies undertaking
actions that would impact our people, culture, and sacred sites will
help to correct this country's historical wrongs against our people.
Consulting with organizations that serve the Native Hawaiian community,
including OHA, the Department of Hawaiian Home Lands, Papa Ola Lokahi,
and the Native Hawaiian Health Care Systems, among others, would allow
Native Hawaiians to access this basic tenet of self- determination-
having a meaningful say in our own governance.
With that in mind, we urge this Committee to pass legislation in
the 117th Congress to codify the federal consultation mandate of
Executive Order 13175 and to extend these rights to all Native
Americans, including Native Hawaiians.
Culture-Based Education and Indigenous Language Programs Lead to
Better Outcomes
The self-determination framework supports the reclamation and
revitalization of Native identity through culture-based education and
language programs. Evidence supports that programs providing Native
Hawaiian students an opportunity to learn in their own culture and
language lead to better academic outcomes. The successes of the Native
Hawaiian education movement are understood throughout the community.
In 2011, Ms. Namaka Rawlins of Aha Piinana Leo, a renowned 'Olelo
Hawai'i (Hawaiian language) immersion preschool and the oldest Native
American language immersion non-profit in the United States, testified
before the Committee about the successes of the preschool and the
language immersion movement generally. At the time, Ka Haka 'Ula o
Ke'elikolani at the University of Hawai'i at Hilo offered the only
Ph.D. in the world that focused solely on Native language and culture
revitalization. This Hawaiian language college provides various levels
of education, including a laboratory school for Kindergarten through
12th Grade. At the time, the Hawaiian immersion laboratory school had a
100 percent high school graduation rate and an 80 percent college
entrance rate. These rates remained steady for more than ten years,
supporting that culture-based education and Indigenous language
programs are reliably and overwhelmingly successful.
Culture-based education in the classroom leads to positive results
on students' socio-emotional development. At the same hearing, Dr.
Shawn Kana'iaupuni testified on behalf of Kamehameha Schools that
culture-based education instructs students on values, norms, knowledge,
beliefs, practices, and language; this approach to education is
successful in addressing educational disparities facing Indigenous
students.
In the years that followed the 1893 illegal overthrow of the
Hawaiian Kingdom, the Territory of Hawai'i's government--whose
legislative structure and executive were dictated by the U.S. federal
government-banned the speaking of Native Hawaiian language in schools
and legislative proceedings at the expense of Native Hawaiian language,
culture, and traditional practices. Although 'Olelo Hawai'i was at risk
of extinction as a result of these oppressive assimilationist policies,
the Native Hawaiian community has worked to reclaim its identity,
culture, and language. In the past five years, enrollment in Hawai'i's
public immersion schools increased by 40 percent and in public charter
schools by 21 percent. \5\ Despite this increase, immersion teaching
positions remain unfilled. \6\ Thus, we urge the Committee to support
the diverse ecosystem of culture-based education, including Native
Hawaiian language immersion programs, Hawaiian-focused charters
schools, and among other things, distance learning opportunities for
those Native Hawaiians who have been forced out of their homelands due
to the economic burdens ofliving in Hawai'i. Additionally, we request
the Committee consider new opportunities to foster the education and
training of future teachers of 'Olelo Hawai'i.
---------------------------------------------------------------------------
\5\ Sue von Lee, Building A Hawaiian Language Curriculum Classroom
By Classroom, Honolulu Civil Beat (Feb. 24, 2020), https://
www.civilbeat.org/2020/02/building-a-hawaiian-language-curriculum-
classroom-by-classroom/.
\6\ Id.
---------------------------------------------------------------------------
Maintaining Cultural Perspectives in Climate Change Responses
Climate change presents a threat to self-determination by impeding
on the safety of the Native Hawaiian community, limiting resources, and
restricting the community's ability to maintain traditional practices.
The consequences of climate change disproportionately affect Native
Americans across the United States and exacerbates existing challenges
to health and welfare within Indigenous communities . In fact, Hawai' i
is already preparing for sea level rise, shore erosion, and increased
natural disasters as the result of climate change. \7\
---------------------------------------------------------------------------
\7\ See, e.g., HAWAI'I CLIMATE CHANGE MITIGATION AND ADAPTATION
COMMISSION, HAWAI'I SEA LEVEL RISE VULNERABILITY AND ADAPTATION REPORT
(2017), https://climateadaptation.hawaii.gov/wp-contentfuploads/2018/
0l/SLR-Report--January-2018.pdf.
---------------------------------------------------------------------------
Sea level rise has already had devastating impacts on our
ecosystems. We are experiencing saltwater intrusion into our lo'i kalo
(Hawaiian taro fields) and changes to the delicate balance of fresh
water and sea water in our loko i'a (Hawaiian fishponds) and other
coastal areas favorable for delicate resources like limu 'ele'ele and
huluhuluwaena (edible seaweeds). \8\ As a result, some Native Hawaiian
families have abandoned their lo'i kalo since taro cannot grow in salt
water. At the same time, coastal resources-like edible seaweeds--are
struggling to survive the changing environment and other opportunistic
species.
---------------------------------------------------------------------------
\8\ See generally Statement of Assistant Professor Malia Akutagawa
before the U.S. Senate Committee on Indian Affairs (July 19, 2012),
https://www.indian.senate.gov/sites/default/files/upload/files/Malia-
Akutagawa-testimony0719l2.pdf.
---------------------------------------------------------------------------
Sacred burial areas are also threatened by rising sea levels and
related coastal erosion. \9\ There are well over 10,000 or more known
or suspected burials situated along the coastlines of Hawai'i. As the
coastlines erode, the iwi kupuna (ancestral bones) are exposed or
washed away. The uncovering of ancient burial sites has even led to
some individuals removing these remains from their burial sites for
personal collections.
---------------------------------------------------------------------------
\9\ Haunani H. Kane et al., Vulnerability Assessment of Hawai'i's
Cultural Assets Attributable to Erosion Using Shoreline Trend Analysis
Techniques, J. OF COASTAL RESEARCH (May 2012).
---------------------------------------------------------------------------
Beyond these impacts to the culture and traditions of the Native
Hawaiian community, Hawai'i is one of only two states in the nation to
experience a local Dengue Fever outbreak in the past five years. \10\
Vector-borne diseases, particularly those transmitted by mosquitoes,
are thriving as average temperatures in Hawai'i increase. \11\ Not only
do these diseases affect the people of Hawai'i, they also place the
population of already endangered, endemic birds at further risk of
extinction. \12\ These birds hold special cultural significance for the
Native Hawaiian community, and their extinction would prevent Native
Hawaiians from continuing certain traditional practices. \13\ Beyond
disease, Hawai'i is already preparing for sea level rise, shore
erosion, and increased natural disasters as the result of climate
change. \14\
---------------------------------------------------------------------------
\10\ Dengue in the US States and Territories, CDC (Oct. 7, 2020),
https://www.cdc.gov/dengue/areaswithrisk/in-the-us.html.
\11\ Hawai'i's Changing Climate Bri(!fing Sheet, 2010, UNIV. OF
HAW. SEA GRANT (2010), https://www.soest.hawaii.edu/coasts/
publications/ClimateBrief_low.pdf.
\12\ Claire Caulfield, Is Climate Change Affecting the Spread of
Disease?, HONOLULU CIVIL BEAT (Mar. 23, 2020), https://
www.civilbeat.org/2020/03/is-climate-change-affecting-the-spread-of-
disease/ ; Brittany Lyte, .Deadly Mosquitoes are Killing off Hawai'i's
Rare Forest Bird, HONOLULU CIVIL BEAT (Dec. 10, 2019), https://
www.civiibeat.org/2019/12/deadly-mosquitoes-are-killing-off-hawaiis-
rare-forest-birds/.
\13\ Ashlyn Ku'uleialoha Weaver, 'I'iwi in Hawaiian Culture, Maui
Forest Bird Recovery Project, https://mauiforeslbirds.org/cultural-
significance/ (last accessed Dec. 17, 2020).
\14\ See. e.g., HAWAJ'I CLIMAT E CHANGBMITIGATION AND ADAPTATION
COMMISSION, HAWAI'I SEA LEVEL RISE VULNERABILITY AND ADAPTATION REPORT
(2017), https://climateadaptation.hawaii.gov/wp-content/uploads/2018/
0I/SLR-Report--January-2018.pdf.
---------------------------------------------------------------------------
Since these consequences directly impact the Native Hawaiian
people, we must ensure that Native Hawaiian voices are included in
discussions around climate change mitigation and adaptation. The Native
Hawaiian community has the right to self-determination when deciding
how it responds to the effects of climate change. The Native Hawaiian
community is uniquely equipped to address climate change because of the
community's historic stewardship over the islands and its resources.
Traditional Native Hawaiian society relied on the ahupua'a system--
which divided swathes of land beginning in the mountains and moving
down to the shoreline--and loko i'a for sustainable resource
management. Today, Native Hawaiian organizations and OHA are
revitalizing these practices.
The federal government must work with the Native Hawaiian community
to ensure Native conservation and agricultural practices are utilized
to mitigate the effects of climate change. With this in mind, OHA
requests a specially-designated seat on any federal climate change
advisory committees or management groups. OHA already holds a similar
position as a co-manager for Papahanaumokuakea Marine National
Monument, a partnership which has successfully infused the unique
Native Hawaiian perspective into federal resource management and
policy. Beyond this role, OHA requests additional federal programs to
support food security; disaster preparedness, mitigation, and recovery;
and future Native Hawaiian science, technology, education, and math
(STEM) professionals. The self-determination framework for Native
Hawaiians would allow us to make food readily available and prevent
permanent harm when disasters strike. Equally important, Native
Hawaiians can achieve greater self-determination by developing more
STEM professionals from within the community to fuse together both
traditional and scientific knowledge.
The Impact of the Pandemic Upon the Health and Welfare of
Native Communities
Like our Native relatives on the continental United States, Native
Hawaiians face disproportionate threats to our physical and mental
health, including poverty, \15\ suicide and depression, \16\ infant
mortality, \17\ alcohol abuse, \18\ homelessness, \19\ and prejudices
against Natives. Native Hawaiian infants are twice as likely to die
(infant mortality rate of 7.9 per 1,000 live births) than their White
peers (infant mortality rate of 3.5 per 1,000 live births) in the State
of Hawai'i. \20\ Native Hawaiians are more likely to suffer from
coronary heart disease, diabetes, and asthma than non-Native Hawaiians
in the State. \21\ Nearly 16,000 Native Hawaiians suffer from diabetes
and more than 36,000 suffer from asthma. \22\ These diseases are the
result of many factors such as social determinants like housing.
Indeed, many Native Hawaiians face homelessness-making up nearly half
of the homeless population on the island of O ahu, \23\ whose
population accounts for approximately two thirds of the State's total
population.
---------------------------------------------------------------------------
\15\ Anita Hofschneider, Poverty Persists Among Hawaiians Despite
Low Unemployment, HONOLULU CIVIL BEAT (Sept. 19, 2018), https://
www.civilbeat.org/2018/09/poverty-persist-among-hawaiians-despite-low-
unemployment/.
\16\ NATIVE HAWAIIAN MENTAL HEALTH AND SUICIDE, OFFICE OF HAWAIIAN
AFFAIRS (Feb. 2018), http://www.ohadatabook.com/HTH--Suicide.pdf.
\17\ Ashley H. Hirai et al., Excess Infant Mortality Among Native
Hawaiians: Identifying Determinants for Preventive Action, AM. J. OF
PUB. HEALTH (Nov. 2013), https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC3828695/pdf/AJPH.2013.301294.pdf.
\18\ NATIVE HAWAIIAN HEALTH STATUS, OFFICE OF HAWAIIAN AFFAIRS 22
(July 2019), http://www.ohadatabook.com/NHHS.html.
\19\ ISSUE BRlEF: COVID-19 AND NATIVE HAWAIIAN COMMUNITIES, NATIVE
HAWAIIANS OVER-REPRESENTED IN COVID-19 AT-RISK POPULATIONS, OFFICE OF
HAWAIIAN AFFAIRS 2 (2020).
\20\ Hirai, supra note 17.
\21\ ISSUE BRlEF: COVID-19 AND NATIVE HAWAIIAN COMMUNITIES, NATIVE
HAWAIIANS OVER-REPRESENTED IN COVID-19 AT-RISK POPULATIONS, OFFICE OF
HAWAIIAN AFFAIRS 1 (2020).
\22\ Id. at 1 092.
\23\ Id. at 2.
---------------------------------------------------------------------------
Mental health is also a serious concern for the Native Hawaiian
community. More than twenty percent of Native Hawaiian adults repo1ted
that they frequently feel their mental health is ``not good.'' \24\
Although Native Hawaiians make up only 27 percent of all youth in the
State between the ages of ten and 14, they constitute 50 percent of the
completed suicides. \25\ These factors contribute to the fact that
Native Hawaiians, despite being the Indigenous peoples of the Hawaiian
Islands have the shortest life expectancy of any major population in
the State. \26\
---------------------------------------------------------------------------
\24\ NATIVE HAWAIIAN MENTAL HEALTH AND SUICIDE, OFFICE OF HAWAIIAN
AFFAIRS (Feb. 2018), http://www.ohadatabook.com/HTH_Suicide.pdf.
\25\ David M.K.I. Liu & Christian K. Alameda , Social Determinants
of Health for Native Hawaiian Children and Adolescents, HAW. MED. J.
(Nov. 2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC32S4224/pdf/
hmj70ll_suppl2_0009.pdf.
\26\ ISSUE BRIEF: COVID-19 AND NATIVE HAWAIIAN COMMUNITIES, NATIVE
HAWAIIANS OVER-REPRESENTED IN COVID-19 AT-RISK POPULATIONS, OFFICE OF
HAWAIIAN AFFAIRS 2 (2020).
---------------------------------------------------------------------------
Recently, the COVID-19 pandemic has exacerbated and will further
widen the health disparities Native Hawaiians face. Unemployment in
Hawai'i has skyrocketed and recovery efforts continue to lag, with the
U.S. Bureau of Labor Statistics reporting that as of October 2020
Hawai'i had the highest unemployment rate at 14.3 percent. \27\ We do
not expect unemployment to lower significantly in the foreseeable
future because one of our biggest industries--tourism--is almost
completely shut down and many small businesses have permanently closed
as a result. Our economy will likely not begin to see growth again
until after the final stages of the COVID-19 pandemic recovery. The
State ofHawai'i expects a $1.4 billion budget shortfall in the general
fund for each of the next four years. As a result, Hawai'i Governor
David Y. Ige has implemented cost- reduction measures including the
furlough of State employees for two days a month beginning in January
2020. \28\ Native Hawaiians will continue to be disproportionately
affected by the economic standing of the State and its major industries
because nearly one in four Native Hawaiians are employed in the service
industry closely tied to tourism in Hawai'i. \29\
---------------------------------------------------------------------------
\27\ U.S. BUREAU OF LABOR STATISTICS, State Employment and
Unemployment Summary--October 2020, https://www.bis.gov/news.release/
Jaus.nrO.htm.
\28\ Governor's Office--News Release--Gov. Ige Announces Furloughs
for State Employees Starting January 1, OFFICE OF THE GOVERNOR (Dec. 9,
2020), https://govemor.hawaii.gov/newsroom/govemors-office-news-
release-gov-ige-announces-furloughs-for-state-employees-starting-
january-1/.
\29\ ISSUE BRIEF: COVID-19 AND NATIVE HAWAIIAN COMMUNITIES, NATIVE
HAWAIIANS OVER-REPRESENTED IN COVID-19 AT-RISK POPULATIONS, OFFICE OF
HAWAIIAN AFFAIRS 3 (2020).
---------------------------------------------------------------------------
In conversations with Native Hawaiian-serving organizations, OHA
learned of ongoing struggles to meet even basic community needs as a
direct result of the pandemic and the subsequent economic crisis.
Native Hawaiian educators and service providers have faced steep
challenges in continuing to offer effective cultural programming to
nurture our keiki (children) due to the lack ofkupuna (elder) and keiki
care options for staff. Even worse, some Native Hawaiian communities
have reported that food security has become a major problem with the
closing of schools and thus unavailability of school lunches. While we
hear heartwarming stories about communities coming together to ensure
that no one is left to starve, without additional federal support, this
pandemic threatens the continued health, safety, and well-being of the
Native Hawaiian community.
We urge this Committee to ensure that Native Hawaiian programs and
service providers are included in all future federal COVID-19 relief
efforts.
Preventing and Stopping Violence Against Our Mothers, Sisters, and
Children
Another essential aspect of self-determination and self-governance
is the safety and welfare of individuals. While the Native Hawaiian
community does not possess a distinct area of law enforcement
jurisdiction, the issue of violence against our mothers, sisters, and
children nevertheless affects our people. Recent reports in Hawai'i
have shown that Native Hawaiians are disproportionately affected by sex
trafficking. One study in particular found that in a survey of sex
trafficking survivors, 64 percent identified as being Native Hawaiian.
\30\ Further, in numerous meetings with service providers and advocacy
organizations, OHA was informed that child pornography and sex
trafficking targeting Native Hawaiian children under the age of 12 is a
particularly troubling crisis in the State of Hawai'i. Similarly, OHA,
along with its partners the Lili'uokalani Trust, the Kamehameha
Schools' Strategy & Transformation Group, and the Domestic Violence
Action Center, recently issued a report raising awareness of the
vulnerabilities and potential impacts of the COVID-19 pandemic on
Native Hawaiians experiencing or at-risk of intimate partner violence.
\31\ Notably, we reported that in 2013, 13.4 percent of Native Hawaiian
adults report experiencing physical or sexual abuse by an intimate
partner, compared to 10.2 percent non-Hawaiian adults and 10.6 percent
of the total State of Hawai'i adult population. \32\ Moreover, this
form of violence is too often underreported and more is needed to
empower survivors to come forward.
---------------------------------------------------------------------------
\30\ See, e.g. SEX TRAFFICKING IN HAWAI'I, PART III SEX TRAFFICKING
EXPERIENCES ACROSS HAWAl'I (2020), https://humanservices.hawaii.gov/wp-
content/uploads/2020/02/ST-in-Hawai%E2%80%98i-Executive-Summary-
January-2020-FINAL092.pdf.
\31\ NATIVE HAWAIIANS AT-R!SKOF INTIMATE PARTNER VIOLENCE DURING
COVID-19 (2020), https://sites.google.com/ksbe.edu/nh-covid19/intimate-
partner-violence?authuser=0.
\32\ Id.
---------------------------------------------------------------------------
We commend this Committee on its work to protect Native women
through the passage of the Not Invisible Act and Savanna's Act into law
earlier this year. These two bills address the issue of Missing and
Murdered Indigenous Women (MMIW) by creating an advisory committee on
violent crime to make recommendations and provide best practices and by
creating new guidelines for responding to MMIW cases and incentivizing
their implementation. As you continue this important work next
Congress, we urge you to include Native Hawaiians in your efforts to
end violence against all Native women and children. Our wahine (women)
and keiki are seeking justice and access to resources to restore their
safety.
Finally, as the 116th Congress draws to a close, we wish to express
our appreciation and gratitude--our mahalo--for you both as Chair and
Vice Chairman of the Committee. It has been an honor to work with two
leaders dedicated to honoring the United States' trust obligations.
Vice Chairman Udall, as you near your retirement, OHA especially thanks
you for your steadfast support of the Native Hawaiian community, and we
would like to thank you for your leadership and work in ensuring the
passage of the Esther Martinez Native American Languages Programs
Reauthorization Act this Congress. OHA wishes you the best ofluck in
your future endeavors. We look forward to continuing our work with the
Committee.
______
Ke Kula'o Samuel Kamakau Public Charter School
Keaomalamala
University of Hawai'i
KALO
'AHA PUNANA LEO
KA HAKA 'ULA O KE'ELIKOLANI
Kahuawaiola
December 9, 2020
Hon. Tom Udall
Vice Chairman,
U.S. Senate Committee on Indian Affairs,
Hart Senate Office Building,
Washington DC.
Dear Vice Chairman Udall:
We send you our warmest of aloha from our homeland to you at the
close of an illustrious tenure in service to your home communities in
New Mexico and other Native communities across this country. We have
watched your work to preserve the sovereign right of indigenous peoples
to access and safeguard indigenous lands. The Sandia Pueblo Act ensured
that the Sandia Mountain Wilderness and Cibola National Forest would be
held in trust for the Pueblo. Along with a long record of support to
protect the environment from hazardous waste dumping and other harmful
actions, we are grateful for the strength of your voice in ensuring
that our mother earth can thrive for generations to come.
We have also heard you champion on numerous occasions the rights of
our peoples to communicate, value, believe, and be Native. Under your
leadership, the Esther Martinez Native American Languages Preservation
Act was successfully reauthorized and indigenous language programs
flourished. Your continued commitment to uphold laws like the Esther
Martinez Act and to appropriate funds to ensure that these public
policies are financially supported has allowed so many indigenous
communities to revitalize and renormalize the heart of their
identities- Native language. In addition, your work to support Native
American small businesses also ensure that indigenous peoples across
the country can become entrepreneurs and innovators in their own
homelands. Many young Natives can utilize Native ideas, practices, and
others not only to earn a living but also to contribute to their home
communities.
Your leadership has supported the continued revival and growth of
Native language and culture across all Native American communities,
including American Indians, Alaska Natives, and Native Hawaiians.
'Olelo Hawai'i (the Native Hawaiian language) and Native Hawaiian
education are included among those successes. In pre- and post-contact
society, Native Hawaiian cultural practitioners passed down traditional
practices orally through 'Olelo Hawai'i. Native Hawaiian society and
the Kingdom of Hawai`i valued education for its people. In addition to
the oral cultural education passed down through generations, 'Olelo
Hawai'i became a written language and was the medium in schools
established by the Kingdom of Hawai'i. In the 1800s, over 250 Hawaiian
language medium schools were in operation. Almost all Native Hawaiians
were literate, and the Kingdom boasted one of the highest literacy
rates in the world.
The overthrow of the Hawaiian Kingdom and United States'
participation in the overthrow changed the trajectory of 'Olelo Hawai'i
and Native Hawaiian education. During the territorial period, American-
run schools banned the speaking of 'Olelo Hawai'i on campuses. The
federal government also enforced a policy of assimilation upon the
Native Hawaiian people similar to those forced upon American Indian and
Alaska Native communities during that same era. Studies report these
policies led to a sense of inadequacy and self-disparagement among
Native Hawaiians. By the 1960s, 'Olelo Hawai'i was near extinction.
Only 2,000 speakers remained in the 1980s. However, around that time,
the Hawaiian Renaissance began to take hold and Native Hawaiian leaders
worked tirelessly to revive Native Hawaiian traditional practices and
'Olelo Hawai'i.
In 1983, Native Hawaiian leaders and community members created
Punana Leo, a Native Hawaiian immersion preschool. The first group of
students educated entirely in 'Olelo Hawai'i graduated from high school
in 1999. Their success was the direct result of continued advocacy from
the families involved with the immersion school movement. Hawaiian-
medium education has grown exponentially since those early days, and it
is now possible to receive an education in 'Olelo Hawai'i from
preschool through doctoral program. Students can receive an education
in 'Olelo Hawai'i in immersion programs, Hawaiian-focused public
charter schools, and distance learning, among other options. These
programs not only revitalized Native Hawaiian traditional practices and
'Olelo Hawai'i, but they also continue to offer students a sense of
connectedness and place through this education system. Your leadership
has made the continued success of these invaluable programs possible.
We applaud your unwavering pledge to improve the health and
wellbeing of Native communities. From water rights to nutrition
improvement, you have steadfastly advocated for improvements to health
care, housing, and agriculture for the Pueblos and the wider indigenous
populations in the United States. Your ability to work with others in
the spirit of bipartisanship has benefited all Natives; Congress and
others are now much more aware of the long history of inequality and
injustice committed against Native peoples in this country.
At the eve of your departure from Congress, we send our deepest
gratitude, thanks, and humble applause for your work to advance Native
language, health and wellbeing, and identity.
______
December 21, 2020
Hon. Tom Udall
Vice Chairman,
U.S. Senate Committee on Indian Affairs,
Hart Senate Office Building,
Washington DC.
Dear Vice Chairman Udall:
We are a group of Native Hawaiian organizations that provide
health, educational, cultural, community development, and other
services to the Native Hawaiian community. On behalf of our
organizations and the community we serve, we write to you to share
information about the importance of 'Olelo Hawai'i (Native Hawaiian
language) in the Native Hawaiian community and to express our deep
gratitude for your decades of support for the Native Hawaiian community
and our culture during your leadership in the United States House of
Representatives and Senate.
A traditional Native Hawaiian proverb states: ``I ka `olelo no ke
ola; I ka `olelo no ka make.'' In our language rests life; In our
language rests death. This adage holds true for many Native
communities. In a May 26, 2011, oversight hearing on Native languages
held by the U.S. Senate Committee on Indian Affairs, Ms. Namaka Rawlins
from `Aha Punana Leo testified that Native languages are crucial to
ceremonial life, spirituality, kinship practices, and overall
indigenous identity. This is especially true for the Native Hawaiian
people. 'Olelo Hawai'i has always been a critical facet of our culture
and traditions. Prior to the overthrow of the Kingdom of Hawai`i,
'Olelo Hawai'i flourished in both spoken and written forms. The
citizens of the Kingdom of Hawai'i valued education, and the Kingdom
enjoyed among the highest literacy rates in the world. Following the
overthrow, a law banned Native Hawaiian language from schools. As a
result of this action, coupled with other policies implemented over the
years, fluent speakers of 'Olelo Hawai'i dwindled to just 2,000 by the
1980s. Like many other Native American languages, 'Olelo Hawai'i faced
the risk of extinction as the result of assimilation policies from the
U.S. Government. Fortunately, 'Olelo Hawai'i did not join the over 125
Native American languages that became extinct. Instead, through the
dedicated efforts of Native language advocates, the community created
Native Hawaiian language immersion preschools. Further initiatives
expanded immersion programs into public schools during that time.
Today, students can choose to complete their studies in a range of
disciplines from preschool through Ph.D. completely taught in 'Olelo
Hawai'i. This is possible because of the tireless efforts of many
people, including the United States Congress. In 1974, Congress passed
the Native American Programs Act to create the Administration for
Native Americans, which administers the grants authorized by the Esther
Martinez Native American Languages Preservation Act. For decades, these
grants have provided critical support for language revitalization
across diverse Native communities.
You have been instrumental in ensuring this critical support
continues through your leadership in legislative action around language
bills such as the Esther Martinez Native American Languages Programs
Reauthorization Act, as well as your work in the areas of education,
health care, cultural sovereignty, and self-determination. We have
enjoyed partnering with you and your staff to ensure that all
indigenous youth, including young Native Hawaiians, are educated in
their language and culture; that all Native Americans receive
culturally competent health care; and that Native communities and
Native-owned businesses have the resources they need to thrive. We
recognize the importance and value of your strong voice on these
issues. Your legislative accomplishments among many other achievements,
have been critical to the preservation and perpetuation of the Native
Hawaiian language and culture for future generations.
Native American language learners and advocates, as well as all
Native American communities and especially the Native Hawaiian
community, owe many of the advances we see in Native American languages
to your leadership. During your tenure, you served to ensure the
federal government honored its trust and treaty obligations to all
Native Americans, including American Indians, Alaska Natives, and
Native Hawaiians. We are thankful for your inclusion of Native
Hawaiians alongside American Indians and Alaska Natives in your
tireless advocacy on behalf of Indian Country.
As you continue to the next chapter of your life, we hope that you
will continue to keep the Native Hawaiian community in mind. Since we
hope to see you again, we wish you a fond a hui hou (until we meet
again) instead of saying goodbye. Mahalo again for your friendship.
`O makou no me ka ha'aha'a,
ALU LIKE
Association of Hawaiian Civic Clubs
Bishop Museum
Boys & Girls Club of Hawaii
Ho'ola Lahui Hawai'i
Hui Malama Ola Na 'Oiwi
Hui No Ke Ola Pono
INPEACE
Kamehameha Schools
Ke Ola Mamo
Kua'aina Ulu 'Auamo
Malama 'Aina Foundation
Na Pu'uwai
Office of Hawaiian Affairs
Papa Ola Lokahi
Partners in Development Foundation
The Queen's Health Systems
______
Response to Written Questions Submitted by Hon. Catherine Cortez Masto
to Hon. Kirk Francis
Question 1. Why is passing the Violence Against Women (VAWA) Act
and other reforms and improvements to the 2013 special domestic
violence criminal jurisdiction, such as the Justice for Native
Survivors of Sexual Violence Act and the Native Youth and Tribal
Officer Protection Act, so important to Native communities?
Answer. As you are likely aware, Indian Country currently faces
some of the highest rates of crime, with Tribal citizens 2.5 times more
likely to become victims of violent crime and Native women, in
particular, subject to higher rates of domestic violence and abuse.
Many of the perpetrators of these crimes are non-Native people. A
primary reason for increased crime in Indian Country is the gap in
jurisdiction stemming from the United States' failure to recognize our
inherent criminal jurisdiction, allowing those who seek to do harm to
hide in the darkness away from justice. When Tribal Nations are barred
from prosecuting offenders and the federal government fails in the
execution of its obligations, criminals are free to offend over and
over again.
The public safety crisis continues in Indian Country, a crisis that
is directly attributable, at least in part, to U.S. policies of
colonialism, termination, and assimilation, as well as the chronic
failure to deliver upon the trust responsibility and obligations. The
Senate must set partisanship aside and act to provide parity to Tribal
Nations in the exercise of our inherent sovereign rights and
authorities. While we ultimately seek the restoration of full criminal
jurisdiction over our lands, the expansion of special domestic violence
criminal jurisdiction and increased resources represent important
advancements toward that goal.
Question 2. Can you elaborate on how the federal government can
work with native communities and leaders to be a better partner in the
tribal consultation process and ensure that federal agencies are being
as inclusive as possible in ensuring that tribal communities have a
seat at the table and continue to be included throughout the process?
Answer. Broadly, the U.S. must work to reform the Tribal
consultation process, as conducted by agencies across the federal
government. Tribal Nations continue to experience inconsistencies in
consultation policies, the violation of consultation policies, and mere
notification of federal action as opposed to a solicitation of input.
Letters are not consultation. Teleconferences are not consultation.
Providing the opportunity for Tribal Nations to offer guidance and then
failing to honor that guidance is not consultation. Meaningful
consultation, at the earliest stages of the federal decisionmaking
process, is a minimal standard for evaluating efforts to engage Tribal
Nations. To this end, USET SPF supports consultation requirements for
all federal departments and agencies, including independent agencies
and the Executive Office of President, with the opportunity for legal
remedy, should these policies be violated. It is also our position that
all federal employees receive education on the history of U.S.-Tribal
Nation relations and the federal trust obligation.
Ultimately, free, prior, and informed Tribal consent, as described
in the U.N. Declaration on the Rights of Indigenous Peoples, is
required to fulfill federal treaty and trust responsibilities. The
determination of what level of consultation is required should come
from Tribal Nations. Meaningful consultation requires that dialogue
with Tribal partners occur with a goal of reaching consent.
Question 3. Do you have any recommendations on how to better
improve tribal consultation for the near future, given the context of
the limitations imposed by COVID-19?
Answer. USET SPF would suggest utilizing zoom or similar virtual
meetings to conduct face-to-face Tribal consultation at both national
and regional levels. This should be reinforced with adequate written
comment periods for those unable to attend or without adequate access
to broadband. Virtual consultation also affords the federal government
the opportunity to address previous logistical issues (travel, costs,
time restrictions, etc.) preventing true consultation, which is one-on-
one Nation-to-Nation.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Brian D. Vallo
Question 1. As you noted in your testimony, Native languages
contain entire worldviews--they are the glue that hold communities
together. That's why we must do all that we can to live up to the
federal policies set out in the Native American Languages Act of 1990.
To that end, Senator Murkowski and I introduced the Durbin Feeling
Native American Languages Act of 2020 in October. This bill recognizes
the contributions of Cherokee linguist and Vietnam veteran Durbin
Feeling, who recently passed on and aims to hold the federal government
accountable and improve targeting of federal resources for Native
American languages. Your testimony expresses support for this new bill.
Do you agree that this bill would be an important complement to the
Esther Martinez Act and other previously enacted laws aimed at
supporting Native languages?
Answer. Yes; the Durbin Feeling bill would be a valuable asset in
helping tribal nations manage and promote the transmission of Native
languages across generations. There is currently no routine collection
of information on the status of Native language learning and usage.
This gap makes it difficult for tribal leaders and federal agencies to
target funds and resources where they are most needed. It also enables
our already endangered languages to slip further into vulnerability or
even extinction without any meaningful opportunity for intervention.
The Durbin Feeling bill fills this gap. Even more importantly, however,
is the fact that it would do so in a culturally sensitive manner that
is driven by tribal leaders. With this new information, we will be able
to make better informed decisions about how to best structure language
nests and language restoration programs funded under the Esther
Martinez Act. It will also help the Administration for Native Americans
develop new grant opportunities to address specific needs identified
using Durbin Feeling data, as well as ensure that existing programs are
optimally operating. Data drives and complements each of these
opportunities, and the Durbin Feeling bill would make that data
possible.
Question 1a. Do you believe that conducting regular, periodic
surveys of Native language communities to ascertain if their needs are
being met by federal programs?
Answer. Yes; I believe that regular surveys of Native language
communities are needed to ascertain whether federal programs are
effectively addressing needs in this area. Data is the rock upon which
informed decisions are made across all fields--whether it be in
science, healthcare, business planning, or education. Language
instruction and transmission is no different. We must have information
on its vitality in order to ensure that it can thrive. What would be
key to Native language surveys--and what is appropriately address in
the Durbin Feeling bill--is that they be driven by the Native language
communities themselves. This is essential to respecting the cultural
sensitivity of our linguistic heritage. One which, as you and I both
noted, contains entire worldviews, spiritual teachings, and
understandings of social networks. It would not be appropriate for a
federal official to lead surveys involving such intimate and protected
information. It is appropriate, however, for federal officials to use
information gathered with direct and leading tribal input to ensure
that federal programs are effectively meeting tribal needs in this
area. Doing so would be akin to a type of cultural repatriation as our
linguistic heritage is one that has been actively, and often violently,
suppressed by the federal government and its private partners in the
past. Supporting the full blossoming of federal programs and resources
available to support Native language communities through regular,
periodic surveys driven by the communities themselves would be right
and just.
Question 1b. Do you believe that a regular, periodic survey of
Native language communities like that proposed in the Durbin Feeling
bill help ensure federal programs are meeting the needs of a more
diverse set of Native language communities, including communities with
lower numbers of remaining speakers?
Answer. Yes; I believe that the regular surveys contemplated under
the Durbin Feeling bill would benefit Native language communities of
all sizes and linguistic capacities, including those with lower numbers
of remaining speakers. Today, some tribal nations have a robust
population of fluent speakers while others have only a handful of
conversant members and still others have no speakers left at all. These
differences are not to be laid at the feet of the tribal nations
themselves. The effects of colonialism, diaspora, generational shifts,
loss of homelands, and socio-economic factors have all contributed--and
continue to contribute--to the myriad statuses of Native languages in
different tribal communities today. What all of our communities need,
regardless of current size and capacities, is information. Information
will help us at all stages of Native language transmission (i.e., in
deepening community fluency, building out existing programs, and
strategizing on how to revive severely endangered and unspoken
languages). The broad reach of the Durbin Feeling bill's survey mandate
will benefit all of our communities.
Question 1c. Why do you think it is an important feature of any
survey of Native languages to ensure Tribes and Native language
communities will be in the driver's seat when it comes to collecting
information about Native languages?
Answer. Building off of my responses to the sub-questions above,
which are also all directly relevant to this issue, it is important for
tribal nations and leaders to lead the survey process where our Native
languages are involved because of the central importance of our
linguistic heritage to our past and present identities as indigenous
peoples. Only we know what information is appropriate to collect and
how, have the trust of tribal members who are holders of linguistic
knowledge, know how to present the data to our federal partners for
broader purposes in program evaluation and support, and, perhaps most
importantly, are sovereigns who should and must be in the driver's seat
regarding any effort involving our internal affairs. We would welcome
the opportunity to partner with our federal allies in carrying out the
Durbin Feeling bill's survey mandate, but it must be from a place of
deference to tribal nations.
Question 2. I worked with other members of this Committee to
introduce the Indian Programs Advance Appropriations Act and the Indian
Health Service Advance Appropriations Act to try to bring greater
budgetary certainty to Indian Country. But, I recognize that advance
appropriations is just one step Congress could take to address this
problem. Would reforming the federal budget process through more
meaningful Tribal consultation and input help achieve more budget
certainty for Tribes?
Answer. Yes; any opportunity for tribal leaders to provide input at
the front end of federal decisionmaking processes is one that will
contribute to more budget certainty for tribal nations in both the
short- and long-term. While tribal leaders do have formal mechanisms
for contributing to the budget formulation process, such as through the
Tribal Interior Budget Council and Congress's Public Witness days,
these are few and far between. Programs serving tribal communities
exist across the federal spectrum and as such there should be direct,
meaningful tribal consultation happening across the federal spectrum as
well. Unfortunately, as this Committee well knows, that is simply not
the case, currently.
Question 2a. How could we work to amplify Tribal voices in the
budget and appropriations processes?
Answer. Amplifying the voices of tribal leaders in the budget and
appropriations process first requires giving tribal leaders a platform
on which to speak. We know our communities, we are involved in regional
tribal cooperation, and we support national priorities that implicate
our shared sovereignty and interests. We are, thus, an invaluable
resource to the Administration, Congress, and federal agencies where
decisions related to federal funding levels and allocations are at
issue. Yet, we largely remain untapped for information despite our
direct, vocal desire to assist. How can these missed connections be
realigned? One way, I believe, is to set up tribal budget council
within each federal department that would provide specific
recommendations on the appropriate funding levels, priorities, and new
program needs for those programs under the jurisdiction of the
department and its sub-agencies serving tribal communities. This could
be modeled on the Tribal Interior Budget Council, which meets on a
quarterly basis. Tribal leaders would then have the chance to actively
contribute to the formulation of the annual budget--we would be help to
shape, not merely react, to its content. Such widespread proactive
involvement in the federal budget and appropriations processes at the
agency level is currently missing and one that would be invaluable to
fill.
Further, at the other end of the appropriations process, I think
that appropriations language allowing for maximum flexibility in the
use of federal dollars for programs, grants, pilot projects, etc.
serving tribal communities would also amplify tribal voices by
empowering local and regional decisionmaking. The use of single
distribution methodologies is often ineffectual because a one-size-
fits-all approach is simply unworkable in Indian Country. As noted
above, the size and internal capacities of tribal communities varies
widely from coast to coast. Our general needs are commonly shared, but
the best allocation of each federal dollar to meet those needs will be
distinct in each community. Appropriating federal dollars serving
tribal communities with a clause allowing for the maximum flexibility
to use those dollars to address a targeted area or initiative would
respect tribal sovereignty and give tribal leaders a concrete platform
on which to participate in allocating the funds resulting from the
federal budget and appropriations processes.
Question 3. As collection and reliance on data grows in our
society, especially through federal law and programs, it is more
important than ever to ensure that Tribal sovereignty over Tribal data
is respected. And that includes ensuring that Tribes are able to access
certain federal databases. Whether it's accessing criminal databases to
address the MMIW crisis, or public health databases to track COVlD-19
activity, Tribes are encountering far too many barriers getting the
information they need--as governments--to protect their communities.
How has lack of access to federal databases impacted your Tribe and
Indian Country as a whole?
Answer. As you note in the introduction to this question, lack of
access to accurate and up-to-date data creates myriad harmful
challenges for tribal nations. For the Pueblo of Acoma, lack of access
to federal databases has created more work and uncertainty for our
staff in responding to the COVID-19 pandemic. We face hurdles in
staying current on the types and quantities of PPE and medical supplies
available in our area, as well as in coordinating community response
efforts due to the lack of direct access to certain contact tracing and
exposure data. We often had to patch together information provided to
us from the Indian Health Service, State health officials, other
federal agencies, our Pueblo sisters, and national tribal organizations
to get a sense of the lay of land, and even then it could be
incomplete. Still in other situations it is not only the lack of access
to but the very lack of existence of federal databases that negatively
impact our community. One of which, of course, is the lack of federal
data on our Native language communities. I think that it would be
valuable for the Committee to consider a future hearing or solicitation
of comments from tribal leaders on federal databases that should be
created to fill unmet data needs related to tribal communities.
It is also important to note that where we have access to federal
data, we must still contend with data that is frequently out of date or
irregularly collected when it pertains to Indian Country. Insufficient
and incomplete data create the same types of challenges as those caused
by a lack of access to information. By this I mean we as tribal leaders
(though it also impacts Congress and federal officials) cannot make
truly informed decisions about matters that directly impact the health
and welfare of our people. Full, accurate, and regularly updated
comprehensive data is the standard to which all federal databases with
information relevant to or on tribal communities should strive. We
would welcome the opportunity to work with the Committee on ways to
further the realization of this goal.
Question 4. Data issues interplay with cultural sovereignty as
well. For example, I've been working with the Rules and Judiciary
Committees to look at an issue with the Music Modernization Act that
would require museums and universities to release recordings of
culturally-sensitive Tribal stories and ceremonies into the public
domain. Do you think the federal government is doing enough to ensure
that Tribal sovereignty over culturally-sensitive data and information
is respected? If not, what more should we be doing?
Answer. No; I think that there are significant safeguards that need
to be put in place across the federal government to better protect our
culturally-sensitive data and information. As a foundational matter,
there are federal agencies responsible for database that contain
culturally-sensitive information yet seemingly have little to no
contact with tribal nations, such as the U.S. Copyright Office
discussed in the immediately following paragraph. Such agencies cannot
be expected to adequately protect our information without those
relationships. Tribal cultural experts (on a national, regional, and
local level, as appropriate) need to have direct contact with the
offices managing these databases to advise on identification of
culturally-sensitive information, its proper management, and the
adoption of policies and/or protocols related to this issue. Relatedly,
it is difficult, if not impossible, to know where these tribal cultural
experts are needed without a full and accurate list of federal
databases housing tribal information. I think that the compilation of
such a list would be a critical starting point for assessing what
actions may be needed to protect tribal sovereignty.
I am encouraged to hear of Senator Udall's outreach on the Music
Modernization Act and hope that the Committee will continue to work
with its colleagues on the Rules and Judiciary Committees in
considering amendments to the Act in the 117th Congress. Title II of
that Act, regarding recordings pre-dating 1972, has the potential to
increase public access to tribal audio recordings that are culturally-
sensitive, including those involving ceremonies, confidential oral
histories and songs, and linguistic heritage. To my knowledge, neither
the U.S. Copyright Office nor the Library of Congress (of which the
Office is a part) has held a tribal consultation on the implementation
or implications of this Act, nor on how they can best manage, protect,
and preserve the materials in their collections with Native
contributors. As a legislative agency, the Library of Congress and its
subcomponents share in the federal responsibility to tribal nations in
their work cataloging, preserving, and celebrating the country's aural,
visual, and print history.
Further, it is critical to point out that tribal sovereignty
interests in culturally-sensitive data are not confined to text on a
page nor to electronic entries in a database. It also includes the
objects, activities, and places to which that data refers. For example,
culturally-sensitive information on the status of a Native language
community necessarily includes the community itself. Our cultural
sovereignty is a complete package that cannot be severed into smaller
parcels for quantification for research and analysis purposes. The
federal government must keep knowledge of this indivisibility at the
fore in its efforts to protect and respect culturally-sensitive data
and information. For example, as the federal government develops and/or
reforms database housing tribal information, it should advance parallel
efforts related to the underlying subject.
Finally, on the issue of cultural sovereignty, I applaud the
actions that have been undertaken by Committee to strengthen
protections for our cultural sovereignty. The PROTECT Patrimony
Resolution and the recent extension of the moratorium on energy leasing
in the Greater Chaco Region are but two key examples. The Pueblo of
Acoma, along with our sovereign Pueblo sisters and other tribal
nations, hopes to see the moratorium made permanent, along with the
reintroduction and swift passage of the Safeguard Tribal Objects of
Patrimony (STOP) Act this Congress.
Question 5. My grandfather Levi Udall once wrote in a judicial
opinion, ``To deny the right to vote...is to do violence to the
principals of freedom and equality.'' I wholeheartedly agree. That is
why I introduced the Native American Voting Rights Act to correct the
decades-long suppression of the Native vote. It is more important than
ever that we pass legislation to ensure that the voices of Native
communities in New Mexico and across Indian Country are counted, not
discounted. Did you hear of any concerns from Acoma Tribal Members
about their ability to exercise their voting rights during the 2020
election process?
Answer. No. As a matter of fact, our close working relationship
with the Cibola County Clerk and Native American Liaison afforded our
tribal members with every opportunity to cast their vote. The Pueblo
insisted on an aggressive outreach and education effort to keep our
registered voters informed of all developments relative to registering
to vote, applying for an absentee ballot, and both the primary and
general elections. Even during this time of pandemic, the Pueblo had
one of the highest voter turn-out for both elections. We also increased
our number of registered voters.
Question 5a. What can Congress do to ensure that every Native vote
is counted and not discounted?
Answer. Having the vote is the cornerstone of democracy; exercising
it, however, is far from guaranteed, particularly in Pueblo and Indian
Country. One of the primary ways that Congress can ensure that every
Native vote has the opportunity to be cast and counted is by enacting
national standards recognizing tribal identification cards as valid
forms of voter identification for American Indians and Alaska Natives,
and by allowing for the use of post office box numbers as a valid form
of physical address for individuals residing on an Indian reservation.
Use of tribal identification cards and/or a lack of a traditional
physical address have been (ab)used by States as a means to deny Native
voters from registering to vote and from casting mail-in ballots.
Federal legislation stipulating that these are acceptable forms of
identification and proof of residence in tribal communities would lead
to the enfranchisement of thousands of Native voters--voters who are
being unjustly denied their right to vote today.
A fundamental aspect of voting is connecting potential voters to
actual polling sites. In remote and rural areas, which characterize the
majority of Indian Country, this is a particularly pressing challenge.
The distance to a local polling site is often directly correlated with
an indigenous person's ability to vote. States sometimes limit (whether
deliberately or not) the availability of polling sites within or near
tribal communities. When the distance becomes too great, the likelihood
of that individual casting a ballot drops precipitously. Further, where
the conditions of roads are inadequate, tribal community members may
face significant physical hurdles in reaching the ballot box,
particularly if election day is accompanied by any form of inclement
weather. Congress must ensure that adequate numbers of accessible
polling sites are available, with sufficient election resources
provided at each, and that the Bureau of Indian Affairs road
maintenance accounts are adequately funded on an annual basis to
facilitate Native voter access to the polls.
Additionally, Congress could advance the exercise of voting rights
across the country by declaring the presidential and mid-term elections
to be federal holidays. For many of our Pueblo members and Americans in
general, taking time off from work to vote is not an option.
Recognizing the presidential and mid-term elections as federal holidays
will enable more people to access the polls without placing their jobs
in potential jeopardy. This would benefit not only indigenous voters,
but also voters of all backgrounds across the United States.
I urge the Committee to consult the comprehensive report on the
status of Native voting rights in America today that was recently
compiled by the Native American Rights Fund. The report, titled
``Obstacles at Every Turn: Barriers to Political Participation Faced by
Native American Voters'' provides a wealth of information for the
Committee in understanding the systemic and cultural factors that
prevent the full exercise of the Native vote and can serve as a jumping
off point for coming up with concrete ways to remove these barriers in
future elections. The report is currently available at www.narf.org/
obstacles-at-every-turn/.
______
Response to Written Questions Submitted by Hon. Catherine Cortez Masto
to Hon. Brian D. Vallo
Question 1. For the Acoma Pueblo, what sort of future projects
would most benefit from new, discretionary grant funding from the
Administration for Native Americans, and how would these projects work
towards the overall goal of preserving tribal heritage and sovereignty
and promoting self-governance on tribal lands?
Answer. Thank you for this important question. Our Pueblo has had
great success in regards to leveraging Administration for Native
American (ANA) grant dollars and resources to advance our linguistic
and cultural programming. These projects are detailed in my written
testimony, as well as in my testimony for this Committee's oversight
hearing on the ``45th Anniversary of the Native American Programs Act
and the Establishment of the Administration for Native Americans''
(February 27, 2019). It is essential that the current offerings of the
ANA continue with full funding and, as you sagely note, that new
discretionary grant funding be made available.
At Acoma Pueblo, we are constantly striving to implement new and
engaging ways to promote our Pueblo sovereignty and cultural and
linguistic heritage. Among our current and potential projects are:
Acoma Language Dictionary Project--Funded in-part by ANA,
this monumental and timely initiative of the Pueblo is nearing
completion with additional planning occurring even while tribal
elders, linguists, and other key tribal resources are
finalizing what will be the first phase of the Dictionary. The
planning is focused on curriculum development for students in
tribally-controlled schools and for introduction within the
local Public School District. There is great anticipation for
access to this resource by the tribal community. The tribal
mandate to revitalize the Acoma language remains at the
forefront of a comprehensive historic and cultural preservation
initiative at the Pueblo. We are grateful for the long-standing
relationship we have built with ANA, and look forward to
maintaining our relationship as the funding and technical
resources offered by ANA have directly impacted our success.
Currently, the ANA's grant offerings are divided into four general
categories: (i) language preservation and maintenance; (ii) Esther
Martinez Act immersion schools; (iii) Social and Economic Development
Strategies; and (iv) environmental regulatory enhancement. These are a
strong core of grants that support tribal community development and
Native languages. I think that a natural complement would be a fifth
category of new discretionary grant funding that is made flexibly
available to support cultural practices and their preservation. This
could include project types loosely akin to the language nests and
immersion schools supported by the Esther Martinez Act that would
instead focus on the transmission of cultural practices and arts, such
as Acoma pottery instruction, music, and culinary traditions, for
example. This type of funding would help us to preserve our Pueblo
cultural heritage and encourage new generations of Acoma artists in all
mediums and styles. Fostering the full expression of our Pueblo
identity would necessarily advance our tribal sovereignty and enable us
to more deeply exercise our self-governance as Acoma people.
Question 2. Can you elaborate on how the federal government can
work with native communities and leaders to be a better partner in the
tribal consultation process and ensure that federal agencies are being
as inclusive as possible in ensuring that tribal communities have a
seat at the table and continue to be included throughout the process?
Answer. One of the central ways that the consultation process can
be improved is also a simple one: time. We need time as tribal
communities and tribal leaders to review the issue(s) and materials
being presented to us, to formulate our responses (which must take into
account the time needed to navigate the internal decisionmaking
structures of tribal nations), and to participate in the consultation
process itself, which may be either oral or written or both. It is
disrespectful and self-defeating when federal agencies conduct tribal
consultation without providing adequate notice or copies of the
materials on which they intend to consult. I understand that, at times,
rapid consultation is required. This has been evident during the
ongoing pandemic when quick decisions on the allocation of relief
resources must be made. However, rapid consultation is the exception
rather than the rule. Where extenuating or emergency circumstances do
not apply, tribal leaders should be consulted for a minimum of thirty
days and preferably sixty days on federal actions and policies
implicating tribal interests.
The other time related recommendation that I believe would advance
the effectiveness of the consultation process is to conduct this
engagement with tribal leaders on the front end of federal
decisionmaking rather than after the fact. True consultation is a
multiple step process. It entails (i) presenting a clear policy or
action proposal to tribal leaders; (ii) soliciting our feedback within
adequate timeframes; (iii) careful federal review of all comments
received; and (iv) adjusting the policy or action as appropriate based
on those comments and reporting back on why all decisions were made. It
is unacceptably common for federal agencies to skip steps (i) to (iii)
and merely present a finalized policy or action to tribal leaders. This
is not consultation. This does not fulfill federal obligations to
tribal nations. This does not respect our responsibility as tribal
leaders to speak for and protect the interests of our people. It is
critically important that the federal government complete all steps of
the tribal consultation process, in the correct order, so that tribal
leaders are included throughout each decisionmaking process.
The federal government can also better ensure inclusivity in the
tribal consultation by meeting tribal leaders where they are. By this I
mean holding in-person consultations, when safe once again, as close to
the local level as possible. The twelve regions of the Bureau of Indian
Affairs and the Indian Health Service, for example, are expansive. The
Eastern Region alone comprises almost all of the United States east of
the Mississippi. While not all federal agencies have designated regions
for managing their communications and service delivery with tribal
communities, almost all still conduct consultations on a regional
basis. Where possible, we strongly encourage federal agencies to
conduct multiple consultations at different geographic locations within
a region to facilitate the maximum participation of tribal leaders.
Question 3. Do you have any recommendations on how to better
improve tribal consultation for the near future, given the context of
the limitations imposed by COVID-19?
Answer. I would recommend that federal agencies, to the greatest
extent possible, coordinate with another on the types of platforms that
they will use for engaging in tribal consultation. Since the start of
the pandemic, different federal agencies have used different virtual
platforms for engaging in consultation. As a result, tribal leaders
must be ready to go with Zoom for one session, then switch to
GoToMeeting for another, and then switch to WebEx for yet another. If
the federal agencies that regularly consult with tribal nations--such
as the Indian Health Service, Bureau of Indian Affairs, Bureau of
Indian Education, and now the Centers for Disease Control and
Prevention--could come to an agreement on the use of even two or three
consistent virtual platform options would benefit tribal leaders and
improve participation rates. It is also critical that no matter the
virtual platform used, each consultation must continue to include a
landline option for participation as many tribal leaders reside in
areas where phones are the only available form of reliable connection.
The abrupt disbanding of in-person consultation processes caused by
the COVID-19 pandemic has brought with it both positive developments
and challenges for tribal leaders. On the one hand, we are now able to
participate in a variety of tribal consultation and listening sessions
without losing valuable time traveling between consultation sites that
would have normally occurred. On the other hand, our ability to
participate in consultations is impaired by IT challenges (or total
absences), Zoom fatigue, overlapping consultation times, and
insufficient notice of sessions, which as we described above prevents
us from being fully prepared or from identifying tribal staff who may
be able to participate in our stead. Our hope is that we will one day
return to in-person consultations, which is the most preferred;
however, until that day, federal agencies must coordinate with one
another and with tribal leaders on the most effective use of
telecommunications technology to fulfill this vital federal obligation.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Kirk Francis
Question 1. Your testimony touches on the issue of federal
budgetary uncertainty and the burden that it places on Tribes. I have
to say--I share your concern 100 percent. That's why I worked with
other members of this Committee to introduce the Indian Programs
Advance Appropriations Act and the Indian Health Service Advance
Appropriations Act. But, I recognize that advance appropriations is
just one step Congress could take to address this problem. You've
pointed to other solutions we could consider- things like mandatory
funding and creating a new Tribal budget component. These are important
ideas that Congress and the Administration should be engages on with
Tribes. a. Would reforming the federal budget process through more
meaningful Tribal consultation and input help achieve more budget
certainty for Tribes?
Answer. It is USET SPF's strong belief that more meaningful
consultation, in which Tribal input is gathered and acted upon, is
critical and always beneficial to the U.S.-Tribal relationship. We
continue to call for a movement toward a consent-based model, which
better reflects our sovereign status. More meaningful Tribal
consultation on the federal budget process offers the opportunity to
expose its flaws, including those aspects of the process that do not
adequately reflect our unique relationship with the United States. This
should lay the groundwork for reforms federal budgeting that truly
honor Tribal sovereignty and the trust obligation.
However, it is important to note that as long as federal Indian
funding remains on the discretionary side of the budget, subject to the
whims of Congress and the possibility of sequestration, budget
uncertainty will remain. That is why in the short-term, we are
supportive of advance appropriations for all federal Indian budget
lines, and in the longer-term, we are advocating for mandatory funding.
Question 1a. How could we work to amplify Tribal voices in the
budget and appropriations processes?
Answer. The Office of Management and Budget (OMB) should be subject
to the same Tribal consultation requirements as other federal agencies
and offices. Further, we recommend a dedicated Indian desk be
established at the OMB to serve as an advocate for Tribal Nations and
coordinate within the agency on the development of policies and budgets
impacting Tribal Nation interests. Currently, examiners assigned to
specific federal agencies or programs and housed in different
departments are the only OMB personnel dedicated to Indian Country. We
believe that the creation of a higher-level, more comprehensive
position would assist the agency in fulfilling its obligations to
Tribal Nations and be more representative of the sacred duty to our
people. The Indian Desk should be responsible for the production of a
comprehensive, detailed crosscut of federal Indian funding each year to
show at the most granular level possible in order to measure whether
funding is actually flowing to Tribal Nations or whether we are merely
eligible.
Finally, both IHS and DOI engage in a Tribal budget formulation
process, which is then supposed to influence the Administration's
request. Yet, Tribal recommendations are usually significantly scaled
back in what is submitted for inclusion in the final President's Budget
Request. While we recognize that the Administration may be unable to
incorporate all of our recommendations into the official request,
Congress should, at the very least, be informed and require an annual
report that compares Tribal Offered (Full Funding) v. Presidential
Request v. Congressionally Appropriated.
Question 2. Tribes that enter into ``638'' contracts and compacts
need to know that the federal government will live up to its side of
these self-determination and self-governance agreements. The courts
have affirmed this time and time again. And this Committee has re-
affirmed this policy as part of its work supporting expansion of Tribal
self-determination. Unfortunately, because of current budget structures
and processes, ``638'' Tribes rarely receive the certainty they need.
a. In your experience, how has the lack of budgetary certainty for
Tribal self-determination programs impacted Indian Country?
Answer. Delays in funding, due to Continuing Resolutions or
shutdowns, severely hinder the federal government's execution of its
trust obligations to Tribal Nations-having destabilizing and disruptive
effects on the provision of basic government services in Indian
Country. This includes vital programs and services such as housing, law
enforcement, road maintenance, social services, and health care--to
name a few. During the 2018-19 35-day government shutdown, USET SPF
member Tribal Nations, a majority of which engage in ISDEAA contracting
and compacting, reported coming dangerously close to reductions in
programs, services, and staff. According to one member Tribal Nation:
''Though our compacts with the federal government state that
our Self-Governance funding is to be delivered at the beginning
of each FY on October 1st, this has not occurred in years. As a
result, we are forced to use our own limited Tribal resources
to financially support our programs and services--to attempt to
fulfill the federal government's trust obligations while
Congress and the Administration attempt to fund the government.
Since we have no alternative income or economic development,
these resources provide only a limited bridge during CRs and
shutdowns.
This winter's shutdown had destructive and disruptive effects
on our ability to provide essential governmental services to
our people, as well as our ability to fulfill grant
requirements. I had to begin to assess and prioritize our
programs and services; to determine how to cut expenses,
including reductions to our workforce during the off-season [in
our area] where non-seasonal jobs are scarce. Further, despite
being awarded new, annual and multiple year grants, for new or
continuing programs or services, there was no one available to
distribute the funds. Because of the shutdown, we either lost
the ability to perform critical grant deliverables because of
the uncertainty of lack of funds, or we missed the seasonal
window to begin and complete those deliverables.'' b. How do
you think these issues might play out as ``638'' is expanded to
other departments -like Transportation and Agriculture?
While the impacts of CRs and shutdowns are not unique to ISDEAA
contracting and compacting Tribal Nations, the aforementioned issues
will continue to play out in Indian Country, including funds outside of
IHS And BIA, without further action to provide certainty to the funding
that we are owed in perpetuity.
Question 3. One of the most successful areas for this Committee
over the past few years has been working with Indian Country to improve
and expand the Indian Self-Determination and Education Assistance Act.
I'm particularly proud of my work with Chairman Hoeven in this space.
Together, we've gotten the PROGRESS for Indian Tribes Act enacted and
expanded the ISDEAA to the Department of Agriculture in the 2018 Farm
Bill reauthorization. a. What federal programs do you think Congress
should prioritize expanding ISDEAA to next?
Answer. As I noted in my testimony, USET SPF supports the expansion
of ISDEAA to include all federal agencies and programs for which Tribal
Nations are eligible. I should also note that HHS has previously
conducted a feasibility study regarding the expansion of self-
governance into other HHS agencies and programs, reporting to Congress
in 2003 that it was feasible. A joint Tribal-federal workgroup followed
this with a 2013 report providing further insight into how this might
be achieved. Since HHS concluded this would need legislative action,
Tribal workgroup participants developed a concept paper and draft
legislation on this expansion. USET SPF remains supportive of these
efforts and urges the Committee to reexamine these proposals in the
next Congress.
We also note that in the absence of full ISDEAA authority across
all federal departments, agencies, the remain direct services from the
federal government on which all Tribal Nations rely. The federal
government must commit to continued funding and attention to these
functions, as well.
Question 3a. What would you say are the `` lessons learned'' from
looking at roll-out of ISDEAA expansion to the Department of
Transportation and the Department of Agriculture?
Answer. There is an urgent need to ensure federal officials, along
with the general public, receive comprehensive education on U.S.-Tribal
relations and history. This includes education on Tribal sovereignty
and self-determination, and the federal government's obligation to
fully support both.
Question 4. As collection and reliance on data grows in our
society, especially through federal law and programs, it is more
important than ever to ensure that Tribal sovereignty over Tribal data
is respected. And that includes ensuring that Tribes are able to access
certain federal databases. Whether it's accessing criminal databases to
address the MMIW crisis, or public health databases to track COVID-19
activity, Tribes are encountering far too many barriers getting the
information they need--as governments--to protect their communities.
How has lack of access to federal databases impacted your Tribes and
Indian Country as a whole?
Answer. Public health: Our lack of access to state-collected public
health data on our people has hindered an already under-resourced
public health system in Indian Country. In 2010, the permanent
reauthorization of IHCIA designated Tribal Epidemiology Centers (TECs),
of which USET operates one, as Public Health Authorities and further
compelled the Secretary of HHS to share any and all health data with
Tribal Nations. However, this directive has not been honored, for the
most part, and Tribal Nations and TECs continue to experience frequent
challenges in access data on both the federal and state level. USET's
Tribal Epidemiology Center, for example, is unable to accurately
conduct disease surveillance or compile complete mortality data for the
Tribal Nations in our region. In the case of COVID-19, this has further
impeded ability to monitor the disease, as well as our response. We
urge Congress to ensure the federal and state governments are required
to share this data with Tribal Nations and TECs.
Public safety: Similarly, our lack of access to criminal and other
public safety information hinders the ability of Tribal Nations to keep
our communities safe. It is critical that we have parity in access to
federal crime information. We support the BADGES for Native Communities
Act as it seeks to provide parity for Tribal Nations in access to
federal crime information, collection, and tracking. This is an
important step toward building a stronger public safety foundation in
Indian Country. The lack of data and coordination presents burdens to
address and overcome the public safety and justice issues across our
communities and our federal partner must do more.
Question 5. Data issues interplay with cultural sovereignty as
well. For example, I've been working with the Rules and Judiciary
Committees to look at an issue with the Music Modernization Act that
would require museums and universities to release recordings of
culturally-sensitive Tribal stories and ceremonies into the public
domain. Do you think the federal government is doing enough to ensure
that Tribal sovereignty over culturally-sensitive data and information
is respected? If not, what more should we be doing?
Answer. No, the federal government must fully uphold our
sovereignty over our own data or data collected from our people,
including cultural and ceremonial data. Tribal Nations should have full
ownership over this data and be the final arbiters over how, when, and
whether it is shared with the public, researchers, or other units of
government.
This also includes assisting us in protecting our communities from
nefarious or harmful research practices. Tribal-designated
Institutional Review Board Review must be a requirement before any
research commences within any Tribal community, unless expressly waived
by Tribal Nation leadership. This review process must include informed-
consent procedures that outline publication permission, as well as
community protection informed consent and procedures.
Additionally, all federally-funded researchers must undergo
mandatory annual training on the critical importance of Tribal
community protection in research practices and data sovereignty, as
well the unique and sacred trust relationship between Tribal Nations
and the U.S. This training must be developed in consultation with
Tribal Nations.
We further remind the Committee that at its core, data should be
understood to be an asset of each Tribal Nation that each respectively
uses to make informed decisions that impact their citizens and
community, not as the primary basis for the United States fulfilling
its trust and treaty obligations.
Question 6. Native languages contain entire worldviews--they are
the glue that hold communities together. To that end, Senator Murkowski
and I introduced the Durbin Feeling Native American Languages Act
of2020 in October. This bill recognizes the contributions of Cherokee
linguist and Vietnam veteran Durbin Feeling, who recently passed on,
and aims to hold the federal government accountable and improve
targeting of federal resources for Native American languages. a. Do you
agree that this bill would be an important complement to the Esther
Martinez Act and other previously enacted laws aimed at supporting
Native languages?
Answer. Yes, a critical aspect of the federal trust obligation is
to assist Tribal Nations in the preservation of our very foundations--
our cultures and traditions. However, it is impossible to track how
well the government is meeting its obligations without regular review.
We believe this bill has the potential to assist with that.
Question 6a. Do you believe that conducting regular, periodic
surveys of Native language communities to ascertain if their needs are
being met by federal programs?
Answer. While, we believe the federal government should be
conducting periodic assessments of all of its efforts to fulfill the
trust obligation, it is important to note that Native languages and
other cultural resources are especially sensitive areas for Tribal
Nations. In the spirit of Tribal data sovereignty, we urge the bill's
sponsors to ensure that Tribal Nations are in full control of any
survey and information released about our languages.
Question 6b. Do you believe that a regular, periodic survey of
Native language communities like that proposed in the Durbin Feeling
bill help ensure federal programs are meeting the needs of a more
diverse set of Native language communities, including communities with
lower numbers of remaining speakers?
Answer. USET SPF's diverse membership includes Tribal Nations
working to retain, restore, and reawaken our languages, after centuries
of attempts at termination and assimilation. It is our hope that this
type of a survey-again, with the appropriate protections--would ensure
more funding reaches our membership and provides the necessary support
to ensure current and future generations are able to speak the words of
our ancestors.
Question 7. Senator Murkowski and I wrote the Durbin Feeling Native
American Languages Act of 2020 to ensure that Tribes will be in the
driver's seat when it comes to collecting information about Native
languages. Do you agree that this is an important feature of any survey
of Native languages?
Answer. As stated previously, USET SPF feels it is an important
feature of any data collected from Tribal Nations and our people. We
would like to further explore the strengthened protections we have
previously outlined with the Committee during the 117th Congress.
Question 8. My grandfather Levi Udall once wrote in a judicial
opinion, ``To deny the right to vote. . .is to do violence to the
principals of freedom and equality.'' I wholeheartedly agree. That is
why I introduced the Native American Voting Rights Act to correct the
decades-long suppression of the Native vote. It is more important than
ever that we pass legislation to ensure that the voices of Native
communities in New Mexico and across Indian Country are counted, not
discounted. a. Has USET SPF heard any concerns from Tribes about the
ability of their members to exercise their voting rights during the
2020 U.S. election process?
Answer. While we remain horrified and dismayed by voter suppression
efforts during the 2020 election cycle, we have not been informed of
any efforts specifically targeting citizens of our member Tribal
Nations.
Question 8a. What more can Congress do to ensure that every Native
vote is counted and not discounted?
Answer. USET SPF joins our relatives across Indian Country in
supporting S. 739, the Native American Voting Rights Act, legislation
that would ensure Native people have equal access to the electoral
process.
______
*RESPONSES TO THE FOLLOWING QUESTIONS FAILED TO BE
SUBMITTED AT THE TIME THIS HEARING WENT TO PRINT*
Written Questions Submitted by Hon. Catherine Cortez Masto to
John Echohawk
Question 1. Looking to the future of fighting voter suppression, in
regards to Native American populations, can you provide recommendations
on how federal legislators can best collaborate with tribal leadership
on continuing the progress of the Native American Voting Rights Act and
addressing the issue of Native American voter suppression in our own
states?
Question 2. Can you elaborate on how the federal government can
work with native communities and leaders to be a better partner in the
tribal consultation process and ensure that federal agencies are being
as inclusive as possible in ensuring that tribal communities have a
seat at the table and continue to be included throughout the process?
Question 3. Do you have any recommendations on how to better
improve tribal consultation for the near future, given the context of
the limitations imposed by COVID-19?
______
Written Questions Submitted by Hon. Tom Udall to
John Echohawk
Question 1. As collection and reliance on data grows in our
society, especially through federal law and programs, it is more
important than ever to ensure that Tribal sovereignty over Tribal data
is respected. And that includes ensuring that Tribes are able to access
certain federal databases. Whether it's accessing criminal databases to
address the MMIW crisis, or public health databases to track COVID-19
activity, Tribes are encountering far too many barriers getting the
information they need--as governments--to protect their communities.
Has NARF observed any negative impacts on Tribes from lack of access to
federal databases?
Question 2. Data issues interplay with cultural sovereignty as
well. For example, I've been working with the Rules and Judiciary
Committees to look at an issue with the Music Modernization Act that
would require museums and universities to release recordings of
culturally-sensitive Tribal stories and ceremonies into the public
domain. Do you think the federal government is doing enough to ensure
that Tribal sovereignty over culturally-sensitive data and information
is respected? If not, what more should we be doing?
[all>]