<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:92524.wais]
S. Hrg. 108-466
REORGANIZATION WITHIN THE BIA
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON
PROPOSED REORGANIZATION OF MAJOR AGENCIES AND FUNCTIONS RELATED TO
INDIAN TRUST REFORM MATTERS WITHIN THE DEPARTMENT OF THE INTERIOR
__________
MARCH 10, 2004
WASHINGTON, DC
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2004
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COMMITTEE ON INDIAN AFFAIRS
BEN NIGHTHORSE CAMPBELL, Colorado, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
JOHN McCAIN, Arizona, KENT CONRAD, North Dakota
PETE V. DOMENICI, New Mexico HARRY REID, Nevada
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
GORDON SMITH, Oregon MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska
Paul Moorehead, Majority Staff Director/Chief Counsel
Patricia M. Zell, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
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Page
Statements:
Anderson, Dave, assistant secretary for Indian Affairs,
Department of the Interior................................. 7
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
chairman, Committee on Indian Affairs...................... 1
Daschle, Hon. Thomas A., U.S. Senator from South Dakota...... 11
Frazier, Harold, president, Great Plains Tribal Chairman's
Association................................................ 25
Hall, Tex, president, National Congress of American Indians.. 16
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice
chairman, Committee on Indian Affairs...................... 1
Marshall, Clifford Lyle, chairman, Hoopa Valley Tribal
Council.................................................... 27
Shirley, Joe, president, Navajo Nation....................... 20
Swimmer, Ross O., special trustee for American Indians,
Department of the Interior................................. 2
Thomas, Edward, president, Central Council Tlingit and Haida
Indian Tribes of Alaska.................................... 23
Appendix
Prepared statements:
Anderson, Dave (with attachment)............................. 59
Frazier, Harold.............................................. 37
Hall, Tex (with attachment).................................. 44
Marshall, Clifford Lyle...................................... 33
Shirley, Joe................................................. 35
Swimmer, Ross O. (with attachment)........................... 59
Thomas, Edward............................................... 77
REORGANIZATION WITHIN THE BIA
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WEDNESDAY, MARCH 10, 2004
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 9:30 a.m. in room
485, Russell Senate Building, Hon. Ben Nighthorse Campbell
(chairman of the committee) presiding.
Present: Senators Campbell and Inouye.
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
COLORADO, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. The committee will come to order.
Good morning and welcome to today's oversight hearing on
what is going on within the Department of the Interior
regarding trust management reform.
In June 2003, Senator Inouye and I laid out our vision for
overcoming the challenges before us in trust matters. The four
elements that we envision are enacting the Indian probate
reforms to help stop land fractionation; launching a large-
scale buy-back of fractionated lands to return those parcels of
lands to the tribes; settling the Cobell v. Norton case; and
building a forward-looking trust management system that is
state-of-the-art and can be tailored to the many differences
between tribes in terms of their needs, and one that respects
Indian self-determination. I am happy to see that on the first
three of these elements, probate reform, the buy-back and
settling Cobell, we have indeed been making progress.
Today's hearing is about the last element and we will hear
from the Department and Indian country on whether the
reorganization is going the right direction or not.
In the interests of time, I will submit my complete
testimony for the record and yield to Senator Inouye for any
opening statement he may have.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Inouye. I thank you, Mr. Chairman.
I, too, in the interest of time would like to submit my
full statement for the record. However, I wish to assure the
witnesses today that I reviewed their submissions to their
committee following the trust summit that was held on February
25. I think it is safe to say that there is strong opposition
in some regions of Indian country to the Department's proposal.
Mr. Chairman, I also want to say on behalf of our colleague
Senator Johnson, who is at home recuperating from surgery, that
he wants to assure the witnesses today that he will reading all
of their testimony and he is sorry that he cannot be here in
person today.
So with that, Mr. Chairman, thank you very much.
The Chairman. Senator Daschle has requested time. He has a
very, very tight schedule, so we may interrupt the first
panel's testimony when he comes in, if you do not mind. Until
he gets here, we will go ahead and proceed with panel 1, Dave
Anderson, the aAssistant secretary of Indian Affairs. He is
accompanied by Ross Swimmer, the special trustee for the
American Indians.
If you would like to go ahead, Dave, please proceed. Your
full written testimony will be in the record. Are you going
first, Ross?
Mr. Swimmer. Mr. Chairman, if you do not mind, I would like
to proceed with a review of where we are with the different
reform initiatives, and Secretary Anderson would follow then
with some comments that he would like to provide to the
committee as well.
The Chairman. That would be fine.
Mr. Swimmer. We have a joint statement that was prepared
and we offer that to the committee for its acceptance. We would
like to have that put into the record.
The Chairman. Your complete testimony will be included in
the record.
STATEMENT OF ROSS O. SWIMMER, SPECIAL TRUSTEE FOR AMERICAN
INDIANS, DEPARTMENT OF THE INTERIOR, WASHINGTON, DC
Mr. Swimmer. Mr. Chairman and Senator Inouye, it is a
pleasure to appear before you today.
We appreciate the opportunity given us to present at these
hearings and to inform the Congress on the progress that we are
making regarding the subjects that you discussed in your
opening statement, probate reform, land consolidation, the
Cobell matter and the reform of the fiduciary trust.
I want to thank the committee and I want to recognize the
extraordinary work being done by the committee and the staff of
the committee to develop the uniform probate bill and to
resolve many of the problems that have plagued us since the
2000 amendments on the Indian Land Consolidation Act. There is
probably nothing that is more important in terms of trust
reform than figuring out how we can resolve fractionation, the
buy-back at least, or the re-consolidation of many of the
fractionated land interests held by tens of thousands of Indian
individuals in Indian country.
This has been an extraordinary work that has been done by
the committee staff. We recognize that and we think we are
making tremendous headway in getting legislation that is going
to substantially improve on the current operations. We have a
few concerns yet about the bill, but we feel that those can be
resolved and we appreciate the opportunity of working with the
staff on this committee because it is extremely important.
Mr. Chairman, in March 2003 the first comprehensive trust
management plan was developed by the Department of the Interior
to address those issues that were cited by the Cobell court for
almost 8 years prior. It was a requirement of the special
trustee in the 1994 legislation to develop such a comprehensive
plan. It was done and it followed in the footsteps of a 1-year
long consultation that was held with tribes, many, many
meetings throughout the country attended by the highest level
officials in the Department of the Interior.
Several components of the comprehensive plan include,
first, the organizational structure or realignment, as we like
to say, of some of the offices within the Department of the
Interior, within the Bureau of Indian Affairs [BIA], and within
the Special Trustee's office. The realignment is there to focus
on the need for resources to reform the fiduciary trust
management. Where those resources are to be placed is
critically important.
We are trying to put them where the need is greatest at the
local agency, but at the same time within the BIA to create a
clearer focus on the fiduciary trust obligations of the
Government; to segregate those trust operations, if you will,
from other service bureau operations and from the education
operations within the BIA that have already been separated out
for purposes of greater focus on those particular issues.
We think that the streamlining that is being done within
the BIA, having direct line authority for trust operations from
the agency, with deputy superintendents reporting to deputy
regional directors, reporting to senior officials in the
central office for trust operations is a significant
improvement so that people understand where they are in the
structure and what their responsibilities are, and what they
are supposed to be doing.
The structure also includes an addition to the Office of
the Special Trustee in the form of fiduciary trust officers.
These are positions that have been criticized by some as, well,
they are not necessary, they are just additional management,
they are people who are not there really to perform day-to-day
activities.
There is nothing further from the truth. We have now
scattered throughout all of the agencies individual Indian
money management clerks who are basically supervised out of
Albuquerque. That is not a good way of doing business. Much of
the work that has to be done at the agency offices has to then
be approved by someone in Albuquerque. We hear this regularly.
Well, it had to go to Albuquerque; it had to go to the
central office; it had to go to the regional office.
The idea of having trust officers and deputy
superintendents for trust at the agency level is so that
nothing has to go out of that agency. Decisions can be made
right there. The trust officers would have the delegated
authority to sign off on matters that previously would have to
go up the chain to get approval by a higher level.
In addition, the trust officers are what I call worker
bees. They are not there to manage just the IM clerks. They are
there to provide access to beneficiaries. So when a beneficiary
walks into the agency office, they are able to get their
questions answered. They are able to get information on their
land accounts, on their financial accounts. They are able to
ask questions, when is my check due; what happened to my last
check; how much land do I own; where do I own land; someone in
my family just died, what is the status of the probate.
The trust officer, like a trust officer in a commercial
operation, will we hope with the technology available, and even
without it, manually, be able to search the records to find
that information and provide it to the beneficiary.
In addition, as issues come up at the agency that may
require approval by a trust officer or superintendent, that
approval can be made right there. There may be spending plans,
for instance, for miners that need to be approved. Today, they
go in some instances all the way to Washington. We are hoping
to get that resolved right there at the agency.
Other initiatives involved in the plan include new funding
requested to support the BIA agency operations, as I said, with
the addition of the trust officers, deputy superintendents and
the support staff. Nearly all of year 2002 was spent
documenting trust business processes. The one thing that had
not happened previously as we worked on trust reform and as was
ordered by the court, was an assessment of where we are now in
the process; how does fiduciary trust work; how do we lease the
land; how do we lease the minerals; how do we collect revenues
that are due from the leases of the land; how do we cut the
timber; how do we cruise the timber; how do we account for the
timber; what do we do after it is cut; how do we do our
financial operations; what happens when money is collected;
does it go immediately into the bank; is it held at the agency;
does it have to be mailed to the regional office.
All of these kinds of issues we said we have to know how
business is done today and that is what we called the ``As-Is''
trust business processes. We spent 2002 mapping those trust
business processes. Virtually 1,000 pages of material came out
of that, where we went out to every region, most of the
agencies and the tribes. We said, we want to know how you do
business, literally from moving this piece of paper to this
person to that person; where do you go when you go out to
cruise timber; who does it; what are the certifications
required; what kind of lease people do we have; what is
required if you are approving a farm and ranch lease; what kind
of skills are necessary; and who is doing the job today.
After we completed that exercise in year 2003, we began the
effort of creating a model that we call the ``to be'' model. We
went back to the same people and said, you have told us how you
do it and here is how we have mapped it out. Now, you have 15
steps to do this activity; can we do it in five steps; can we
reduce either through technology; either through better
training or some other activity; can we cut out many of these
steps that it takes to get from A to B to C to D?
What we have found is that there is great receptivity out
there to do things better and to do things in a much more
organized and standardized way within the BIA and the Special
Trustee's Office. Such things as probate, leasing, mineral
production, accounting, ownership, information technology,
records management, some of the very fundamental things it
takes to run any business, but particularly a trust business,
are the kinds of things that we are talking about reengineering
in the ``to be'' process; things as simple as what is a records
retention schedule.
This is a big issue in the Cobell case. They said that over
the years, the Bureau of Indian Affairs did not keep its
records very well. We did not have a system of records. We did
not have retention schedules. We did not have anything that
tells a superintendent, here is how long you are supposed to
maintain this particular record. We do have those things now
and they came about because of the reengineering that I am
talking about, the things that we have done.
One thing I do want to emphasize, however, is that for the
most part the reengineering of the trust business processes in
the Department of Interior are internal to the operations of
the Department. The idea is to improve the overall fiduciary
trust management of the Department of the Interior, whether it
is Minerals Management Service, the Bureau of Land Management,
the USGS, BIA, Special Trustee, Office of Hearing and Appeals.
Whoever touches trust, we are trying to reengineer where
necessary to improve the process that we use now to administer
that trust.
This is not to say, nor have we proposed in any form or
manner, that an Indian tribe must adopt our business process.
We recognize that Indian tribes have a unique position in the
management of their trust assets when they accept that
responsibility. They may have systems that work extremely well
on their reservation, yet they may not be adaptable to the
universe at large, whereas the Bureau of Indian Affairs and
Special Trustee in the Department is looking at it nationwide.
We are trying to work out the processes that work across
the board, making allowances for those unique instances through
law, regulation or tribal statute, that may require a
particular way of doing business in a particular area, but the
tribes are still able, and will continue to be, to adopt the
systems that they think fits their way of doing business.
Trust is only one of the areas the tribes operate. They are
in economic development. They are doing things in social
services. Tribes are out building roads. They are doing
educational activities. They may have systems that work in a
unified manner that they use for their trust business processes
as well. We do not have any intention of asking them or forcing
them into a process that we may choose that works for the
Bureau or the Special Trustee.
It is not to say that those systems are not available. One
example of that would be the new title system that we are
developing now. We want a title system that allows a person to
go into the system, look up a name, and find out what they own.
That sounds pretty simple. You would think we could do that
today. Well, we almost can on a case-by-case basis, but give me
400,000 names, it would take a long time.
We have people that own land on many different
reservations. I can go into a title plant in Anadarko and I can
tell you who owns what in Anadarko. But that person may own
land on Rosebud. He may own land in the State of Washington. He
may own land out in Arizona. Those will not show up on the
title plant in Anadarko. The title plant and the title system
that we are implementing right now and hopefully will have
fully converted by the end of the year or shortly thereafter,
will allow us to go in and look at the nationwide ownership and
be able to do those things that are basic to a beneficiary's
needs, where do you own land; what is the legal description;
how much do you own; what are the encumbrances against it; if
it is leased, how much money is coming in on it; whether it is
in Rosebud, South Dakota; whether it is in the State of
Washington; or whether it is in New Mexico or Arizona.
The tribes most likely would want to align their title
system if they are operating one, and we have a couple that do,
with that title system so they could have the same ability,
because people on their reservation own property on other
reservations as well. There may be other areas where the tribes
would want to join our system, so to speak, but that is their
choice. I might add, however, that we will continue to require
the tribes who operate or manage fiduciary trust activities, to
meet the same trust standards required of the Secretary when
those tribes assume responsibility through contract or compact.
The organizational structure that has been the subject of much
discussion in the last two years is now in place. There is no
such thing as stopping organizational realignment or
reorganization. It is done. Most of the remaining jobs at the
agencies that the trust officers and some of the deputy
superintendents will be filled by the end of this calendar
year. They are presently being advertised on the street right
now.
The purpose of this organizational alignment that we have
chosen for the BIA and Special Trustee and other Interior
offices is to create an organization that is transparent to the
beneficiaries of the trust, yet provides beneficiaries with the
services not previously available. When I say ``transparent,''
what we want is when a beneficiary walks into an agency office,
they do not go to the OST or the BIA or the MMS. When they walk
into the agency office, they ask a question and they get an
answer. They do not care who that particular person is being
paid from, or what budget. They want an answer to a question.
That is what we want to give them. So we do not want this
division to be apparent. We want it to be a team approach. I
think that Secretary Anderson has fully committed to that, as
previously others in the BIA.
This did not happen easily, this organization that we are
talking about. Thousands of hours of meetings and countless man
hours have brought us to the point where we truly believe that
the trust initiatives that I have discussed are what we must
have if we are to correct the problems of trust management and
move this trust program into the 21st century.
We do not want to stop there. We want the tribes to enjoy
the benefits of these initiatives, including the organization.
They also spent considerable time attending consultation
sessions, reading the thousands of pages of the ``as is'' and
the thousands pages of the ``to be'' reports, and providing us
with valuable comments. We also recognize the fear of change
and that not everyone is likely to get on board until they see
the evidence that our trust initiatives will do the job.
We also recognize that there is a finite amount of money to
spend for anything. While I am convinced that the money has not
been taken from existing service programs to fund trust reform,
one cannot help but wonder whether $109 million as requested
for historical accounting is not affecting the budgets of all
Interior programs.
We are very grateful for the role this committee has played
to help during the Cobell to bring the parties to the mediation
table. We embrace this effort and we believe it is an
opportunity to resolve the accounting issue, which even the
plaintiffs have publicly stated they do not really want. Again,
your help with this process is greatly appreciated.
I might add that several of the tribes that have been most
vocal about the proposed trust initiatives and trust reform are
also those tribes that have lawsuits pending against us for
breach of trust. The status quo is not the answer before and it
is not the answer now. Well thought-out planned initiatives
that have gone through an extensive consultation process are,
we believe, the way to have true trust reform. We believe we
have done that. We have spent 2\1/2\ years doing just that,
careful planning; lengthy consultation; meetings after meetings
throughout Indian country; engaging tribes; engaging employees
and beneficiaries in this process.
We appreciate the time the committee has given us this
morning and again I compliment the committee and its staff on
the work it is doing on trust reform. I would be pleased to
answer questions, or Secretary Anderson may make his statement
at this time.
[Prepared statement of Mr. Swimmer appears in appendix.]
The Chairman. Thank you, Ross.
Mr. Assistant Secretary, if you have comments go ahead and
proceed.
STATEMENT OF DAVE ANDERSON, ASSISTANT SECRETARY FOR INDIAN
AFFAIRS, DEPARTMENT OF THE INTERIOR, WASHINGTON, DC
Mr. Anderson. Thank you. Mr. Chairman and Vice Chairman
Inouye and other members of the committee and the tribal
representatives here, good morning.
First of all, I would like to start out by saying that I am
grateful for the support that everyone in this room has shown
me in support of my new position. I thank you all for that.
Today, we are here to discuss a major effort on behalf of
the BIA and the Office of Special Trustee to meet the need for
a change within the BIA to provide better services to the
tribes. While I may be new at this since I have been on board
only for a few weeks, a lot of my time has been spent with the
staff in reviewing all of the work that has been done before my
time, to better understand this reorganization.
One of the things that I have come to realize is that
change has to happen. In just watching the day-to-day
activities, many times I have stopped and asked, why are we
doing things like this? Another one of my questions is, has
this been the same for other assistant secretaries who have
been here before me? And then I asked, at what point do we stop
the merry-go-round and call time-out and say things have to
change? Because many times when I am looking at how things get
processed, it is no wonder that sometimes things take 6 months
to 1 year to go through the system.
I really believe that we have a responsibility to Indian
tribes as well as Indian individuals to provide services the
same way that I am used to providing services in the outside
world. I believe that can happen. I believe that the people
within the BIA and the Office of Special Trustee all have a
recognition to provide better services in their heart. I
believe that we all understand that change has to happen.
In better understanding the Cobell lawsuit, many of the
problems that have been pointed out by this case is that many
times in the past it has been difficult to identify who
specifically was responsible to carry out these tasks, which is
one of the reasons why I think things appear sometimes to be
mismanaged. I really believe that in looking at this
reorganization that we are and have attempted to identify
positions that would be specific to providing trust services to
tribes and individuals in a timely manner and in an organized
fashion, where we can provide the best services possible.
One of the most important things that has come out of this
reorganization is better computer systems for accountability. I
am amazed as I go through my daily activities, how many times
our different regions are on different automated systems. Then,
I am even more amazed at how many of the different departments
within the agencies are on different automated systems. I
really believe that this reorganization provides the
standardization that we need to see come into play in order for
us to enter the 21st century.
What has happened in the past can no longer continue. The
BIA, I believe when I came on board that historically there has
almost been a certain mustiness to this thing, and things have
always been done this way. There is a good-old-boy system of
doing things and things have worked like this for many years;
why do we have to change? This is often the comment that I
hear, well, things are working fine out here in the field; why
do you have to change it up there, because you do not really
understand what is happening out here, and things have been
going on all right. But in fact, when we look at the picture on
the whole, things have not been happening for the benefit of
Indian people the way they should have.
I think change, at times, is difficult. It has been said if
you always did what you always did, you are always going to get
what you always got. And then a lot of us when looking at the
way we do business, people often shake their heads at the way
we have done business. It reminds me of the definition of
insanity. If you do the same thing day in and day out and
expect different results, it is going to result in insanity.
I think for too long we have been doing the same things day
in and day out, and expecting different results. Tribes have
come to us and have asked us to be more accountable. Tribes
have asked us to provide services in a more timely fashion. We
have not been able to do this.
I believe that standardization has to become a way of life
for us. We have to be able to communicate with our different
offices out in the field. I have talked with tribal leaders and
they have commented many times that we do not believe that we
should be standardized because we are different; our needs are
different; we are different people here; our regions are
different. I understand that. We are not trying to standardize
tribes, but we do have a need to standardize the computer
systems that we communicate.
I really believe that today in this age of change we have
seen more change happen globally in an unprecedented fashion
than we have ever seen before. We are living in a day of change
where more change is happening in 1 day of your life than in 10
years of your parents' lives. I really believe that today we
have to be about the business of change. We have to understand
change so that we are no longer victims of change, but we
become the architects of our destiny.
I really believe that today we need to bring uniformity. We
need to bring standardization of the computer systems that will
provide us the accountability so that we can provide better
services to our tribes.
Is this change good? I believe it is. Does everyone agree
with this change? No, I think the answer could be very
definitely no. You will hear testimony where it is. But the one
thing that I know today is that, again, we must be about the
business of change. I really believe that the people who have
worked many long hours to try and figure this out, in their
hearts believe that we are doing the right things.
I believe that we have listened to the tribes. It is very
difficult to take what some tribes think is appropriate for
them in one area, and what other tribes believe is appropriate
for them in another area, and then try to bring it all together
and make sense. It has been very difficult.
Today, I believe that what we have to offer has been the
best that we have been able to do to bring this all together so
that we can bring about the change we all recognize needs to
happen. With that, I do not believe that this is the end of it.
I believe there is tweaking that has to go along with it, and I
believe that we are open to listening. I believe that we are
open to working with the tribes so that we can make the work
that we have to do be appropriate for what has to happen out
there.
I believe that in my new position and my new job that one
of the things that I represent is the change that has to happen
in Indian country. When I came on board, I said, what am I
going to do differently than what has been recognized by the
other assistant secretaries? I believe there has to be a breath
of fresh air, to be about the business of change.
When I go out and start visiting with the tribes, that is
one of the things that I make sure that I do is to not only
talk to tribal leaders, but get out into the school systems and
let our Indian youth know, because they are the leaders of
tomorrow, that in this great country we live in, that as Indian
people our children can have dreams, and they can accomplish
their dreams, and they believe in themselves. If they are going
to believe in themselves, they have to understand that they
have to stop the cycle of what has been happening heretofore.
Today is a brand new day, and today if things are going to
change, we have to be about the business of change.
Thank you for your time in listening to me. Thank you.
[Prepared statement of Mr. Anderson appears in appendix.]
The Chairman. Thank you.
Senator Inouye had the double hearing this morning. He had
to leave early. If he has any questions, he will submit them to
you in writing, as other members who may or may not appear this
morning. But thank you to both of you for your detailed
testimony.
I agree in one respect, and that is very clear that 150
years of what has happened to Indian tribes certainly has not
made things better for them from the standpoint of, as you said
Dave, helping our children grow.
I was interested in your definition of insanity. It clearly
parallels and describes some of the legislative process around
here. The two of you might know that.
You also talked a great deal about change. I certainly do
not blame tribes for being very, very careful about change,
knowing the Federal Government's past record in dealing with
American Indians. The Indian tribes, probably more than any
other group in America, they have seen almost every change as
reducing their sovereignty or reducing the status they once
had.
I sometimes look at Indian people in terms of what are just
generally called ``minority movements'' in America. But most
minorities in America when they came to this country, it was
really for upward mobility in some respects. They looked for a
better life. They tried to gain things that the majority
culture had, whether in modern society it is a house and a car
and a good job, or something of that nature, in the olden days
maybe a piece of land to farm.
I think Indian people are probably the only ones in the
Nation that had nothing to gain and everything to lose, and
they have lost and they have lost and they have lost. And 150
years of dependency on the Federal Government clearly has not
worked very well for them. They just continually lose, so I can
understand why they are very, very careful about change.
Ross, you mentioned in detail the amount of consultation
process that is going on, and I appreciate that. But I have
been here long enough to know, and maybe this is not just with
Indian people, but no matter how much you consult, somebody
will say afterwards, you did not ask me; or I was not at the
table; or I didn't know about it, or something. So I just
encourage you to do much more of that in every step of the
process of reorganization.
We are going to hear some comments today that people that
are not at all thrilled about it because they think it is top-
heavy, creating many more jobs at the top level and not enough
actual workers, but we will get into that in a few moments.
I notice that Senator Daschle, our distinguished Minority
Leader, has been able to show up. So before I ask any
questions, I would like to ask Senator Daschle to sit down and
make a statement. Senator Daschle has been a great supporter of
Indian programs, as most of the people in this room know, and
we are delighted to have him here in front of the committee.
Senator Daschle. Mr. Chairman, just on a personal note, let
me say that I know you have had to make a very difficult
decision about your career in the Senate. On a bipartisan
basis, as I said to you in person, I know I speak for everybody
in this room and the entire Senate in congratulating you on a
remarkable Senate career.
The Chairman. Thank you.
Senator Daschle. I just want you to know you have friends
here for as long as you live, and we hope that your next year
will be every bit as productive as the last years you have
served in the Senate. We are proud to call you our friend, and
I am honored to be here before you this morning.
The Chairman. Thank you.
I got a call from our tribe right after I made that
decision. They said it is clear that I need to go to the
mountain, and I think I do. [Laughter.]
Senator Daschle. Having read your book, I know what that
means. So, thank you.
STATEMENT OF HON. TOM DASCHLE, U.S. SENATOR FROM SOUTH DAKOTA
Senator Daschle. Two weeks ago, tribal leaders from nearly
every Indian nation in America traveled to America, Mr.
Chairman, as you know, for a meeting of the National Congress
of American Indians. Their urgent plea to all of us was that
the Federal Government work with native people to find an
honorable and equitable solution to the Indian trust fund
dispute. This hearing is a first step in honoring that request,
and I applaud you for holding the hearing. I want to thank
others on the committee as well for their leadership in
scheduling it so quickly, especially Senator Inouye.
I represent South Dakota, home of the great Sioux Nation.
More than 30,000 men and women in South Dakota are individual
Indian money account holders. Most are elders in their sixties,
seventies, eighties, and even ninties. Many have lived all
their lives in the kind of grinding poverty that most Americans
don't even know exists in this Nation. When their land is
leased, it is usually for grazing rights. Those rights do not
produce much income, but for many Indian trust account holders
in South Dakota, it is half of their annual income.
Maida LeBeau is one of the 30,000 trust account holders in
my State. She lives in Eagle Butte on the Cheyenne River
Reservation. She is the matriarch of an extended family that
includes more than 40 kids. She considers them all her
grandchildren. Last year, Mrs. Lebow had planned to use a good
part of her annual lease payment to buy Christmas presents for
the children. She expected her check to arrive in October, as
it has for several years. By December, there was still no check
and no explanation. Mrs. Lebow spent hours on the telephone
trying to reach someone in the Office of Special Trustee who
could help, but she could never get beyond the endless
voicemail messages. So in her words, Christmas did not come
this year for her grandchildren.
In early January, Ross Swimmer the Special Trustee for
American Indians, who I am delighted and honored to join on of
this panel held a meeting on trust reform in Rapid City, SD. On
January 13, Mrs. LeBeau drove more than 3 hours to get to that
meeting. She then waited another 8 hours as nearly 100 other
account holders stood up and one-by-one described problems they
were having with their accounts. Finally after all of that,
Maida LeBeau got a few minutes to plead her case. Weeks later
after Mr. Swimmer's personal intervention, Mrs. LeBeau's check
finally arrived.
Mr. Chairman, there are 300,000 Indian trust account
holders in our country. Most of them do not have Maida LeBeau's
strength. Many are in fragile health. They cannot drive 3 hours
to speak directly to the head of the Office of Special Trustee
to resolve problems with their trust accounts, and they should
not have to.
For years, Congress has deferred to the executive branch,
administrations of both political parties, to resolve the
Indian trust management dispute. Yet the problems are no closer
to being solved now than they were a decade ago, when Congress
first directed the Interior Department to conduct an accounting
of trust assets. It is time for Congress to admit that this
hands-off approach is not working and accept our share of the
responsibility for planning a fair and timely solution.
This morning before this committee, Chairman Tex Hall, the
president of the National Congress of American Indians, will
call on Congress to become a more active participant in the
effort to broker a just and equitable solution to the trust
management problem. He is right. When I look at the long
history of the trust management problem, I see three basic
paths to its resolution. Congress, the Interior Department and
the tribes can work together as co-equal partners to fashion a
consensus solution. We can seek a mediated solution to the
problem. Or, we can throw our hands up in despair and allow the
issue to be resolved in the courts. These paths are not
mutually exclusive. They are three distinct routes to the same
goal.
I am here today to offer some specific suggestions for how
I believe we can move the trust management issue forward in a
constructive way. First, congressional meddling in the Cobell
case must end. Interventions such as the rider blocking Judge
Lambert's ruling do not simply delay justice for Indian trust
account holders, they undermine the delicate balance of power
that is at the heart of our system of government.
Second, as soon as possible, I believe this committee
should initiate three-way discussions involving Congress, the
Administration and tribal leaders to search for a consensus
solution to the trust dispute. I know the Interior Department
maintains that its reorganization has been shaped at least in
part by ``listening sessions'' it held in Indian country. Yet
the fact remains that tribal leaders around the country do not
accept the premise that those meetings represent true
consultation. And neither do I. This problem cannot be solved
by Interior Department officials simply by redrawing lines on a
BIA organizational chart. The search for a settlement must
include real, meaningful, ongoing consultation with tribes and
tribal leaders. It is, after all, Indian people's money.
Congress should become more of an active partner in the
efforts to broker such a consensus solution. I suggest that
putting on the table the Interior Department's plan, the Great
Plains regional proposal for trust reform outlined today by
Chairman Harold Frazier, and the bill introduced by Senators
McCain and Johnson, would be a good place to start.
At the same time, all parties should seriously explore the
possibility of a mediated settlement. I commend Chairman
Campbell and Vice Chairman Inouye for the leadership that they
have shown in beginning this mediation process. It is my view
that in order for the mediation process to be effective, it
should be headed by leaders of great stature who are
experienced in difficult negotiations and whose integrity is
unquestioned. The Indian trust dispute is not a partisan issue,
and resolving it must not be viewed as a political effort. For
that reason, I strongly urge that the mediation process be
cochaired by a prominent Republican and a prominent Democrat.
Finally, Congress must begin budgeting now for the eventual
resolution of this dispute. Last year, I introduced the Indian
Payment Trust Equity Act [S. 1540], which would create a $10-
billion fund to begin making payments to trust holders who have
received an objective accounting of their trust assets. The
fund could be expanded if necessary.
So I ask the committee to begin now to look seriously at
that proposal or perhaps others. Many people who are owed money
are elders. They cannot wait for years to learn their account
balances and years more to receive their money. They do not
have that many years. Maida LeBeau should not be forced to
worry about her next Christmas. There should be a mechanism in
place to issue regular payments to account holders in case
negotiation or mediation fails to produce a consensus solution.
Nearly 1 year ago, the distinguished chairman and vice
chairman of this committee wrote a letter to the parties in the
Cobell case expressing their concern that continuing the
litigation would only further delay justice for trust account
holders. I would like to read one paragraph from that letter,
quote:
We believe that the most effective and equitable way to
resolve this threshold matter is to engage the services of an
enhanced mediation team that will bring to bear trust
accounting and legal expertise to develop alternative models
that will resolve the Cobell case fairly and honorably for all
parties. If within a reasonable amount of time there is no
progress made on such a resolution, we intend to introduce
legislation that will accomplish the goal of resolving the
Cobell matter in a mediated fashion.
The time has come for Congress to become a more active
partner in the search for a just and equitable settlement.
So Mr. Chairman, again I want to thank you and members of
the committee for holding this hearing. I look forward to
working with the committee, the Administration and the tribes
to find a solution that all parties can support.
Thank you very much.
[Prepared statement of Senator Daschle appears in
appendix.]
The Chairman. Thank you for your testimony. I am sure you
are aware that we have introduced a bipartisan bill, S. 1770,
and I know I am speaking for Senator Inouye when I say that we
certainly would appreciate your support in helping us craft
final legislation that can go to the President to resolve this
problem.
I would also say before you have to run, because I have so
many relatives in your State, Senator Daschle, I know very well
a lot of the problems and often use the plight of Indian people
in South Dakota when we hear a dialog on, say, unemployment at
5 or 6 percent nationwide, and I suggest maybe they go to Eagle
Butte and see what it is like to live with a 60-percent
unemployment; or when we talk about problems that our
youngsters are facing and I suggest maybe they go to Pine Ridge
and see how many youngsters are driven to suicide or try it
because of the lack of opportunity; or when we talk about
health, I suggest maybe they go to Rosebud and see what it is
like to see people who have lost their limbs because of
diabetes where the diabetes rate is probably near 50 percent.
The problems Indian people face are just horrendous compared to
the population at large. I just wanted to thank you for all
your efforts in trying to help our people. Thank you.
Senator Daschle. Thank you very much, Mr. Chairman.
The Chairman. I do have a few questions for our witnesses,
if I can get back to those for a little bit. Ross, you did
speak at length about how this is going to be reorganized, but
there is some question, as you know, I think you alluded to it,
that some tribes are saying that this is really going to be a
top-heavy bureaucracy, and that there are few new dollars for
staff at the local level. Would you care to respond to that
again?
Mr. Swimmer. Certainly. It is everything but top heavy. I
do not know of any jobs created at the central office level,
for instance, and very few at the regional office. Most of the
new jobs that are created are at the agency offices, and that
is where we need the most.
The Chairman. Would that result in more or less 638
contracting?
Mr. Swimmer. It should not have any impact on 638
contracting. We have that as a major goal within the trust
management plan. We encourage it. We want it to happen. We do
believe that the tribes will have to be held accountable if
they assume trust management activities, but we want them to
take those activities over to the greatest extent possible.
The Chairman. Did I understand that you are consulting with
the tribes on the decisions regarding staffing levels, too?
Mr. Swimmer. The overall organizational plan that was
presented includes staffing levels at the agencies,
particularly the trust officers and the deputy superintendents
and the staff that would be there. That has been discussed at
quite some length on the way in which they would perform their
activities.
The Chairman. And for new staffing levels, will that be
Indian preference staffing?
Mr. Swimmer. It is except in the Office of the Special
Trustee for the offices that would be added or the work that
would be added at the BIA level, it would be Indian preference.
The Chairman. Okay, thank you.
Frankly, I think a lot of the questions I had, you actually
answered in your testimony, so I do not want to belabor it. It
is the committee's understanding and maybe I do not have it
right, but under the reorganization, there are certain
functions that were once handled at regional level that are
going to be pulled back to the central office here in
Washington, DC at the BIA. Is that true or not?
Mr. Swimmer. That is true. It is not the function per se.
It is the authority for making the decision. For instance in
the area of administration, some of the ultimate authority is
at central office, and it is simply to get the standardization.
It is not pulling jobs up to the central office. The people are
still in place at the regions and the agencies. But when they
spend the money, so to speak, it is important that we know
where it is being spent and how it is being spent, and that we
use systems that are standardized so that we get reports back
from the regions and the agencies that we can make sense out
of, and the bureau can.
So what the bureau did is that they elevated the ultimate
responsibility for some of these activities to the central
office. It has been a point of contention because in the past,
the regions particularly have pretty much run the regions
independent of each other. If we are going to have effective
and efficient management, we have to have some standardization
in the processes. I think this is the basis for which the BIA
restructured that line authority within those administrative
functions.
The Chairman. You touched on one other thing while I was
writing some notes here, and I know it is a concern to Senator
Inouye and I both, and that is that we do not want money that
goes into the reorganization to take away from other areas that
are extremely important in Indian health or Indian education or
so on. It is my understanding from both of you that that will
not be the effect. Is that true?
Mr. Swimmer. It is not our intention to reprogram existing
moneys beyond what we had asked for in the original $5 million
last year. We have asked for new money for new positions, and
we do have that money for 2004 and we have I think it is a
total of about between the two agencies around $7 million that
we are asking for in 2005 to finish up the rest of the
employment.
But the organizational structure is not itself taking money
and we do not expect to have an obligation.
The Chairman. Okay. I thank you both for appearing. I will
probably have a few additional questions that I will submit in
writing, as will other members, too. If you could get those
back to us at your earliest convenience, I would appreciate it.
Thank you for being here.
Mr. Anderson. Senator, if I could just take a quick minute
to respond briefly to Senator Daschle. I am very familiar with
the case that he mentioned. What I would like to say is that
the reorganization and the trust reform initiatives we are
talking about does exactly what he asked for. It takes care of
the Maida LeBeaus. She could get an answer at the agency and
she would not have to come to the Special Trustee.
The Chairman. Good.
Mr. Anderson. Thank you very much.
The Chairman. Perhaps the staff, if they are still here,
can carry that message to him.
Now we will proceed to panel 2, which will be Tex Hall,
president of the National Congress of American Indians, I do
not see Tex here, but would you look out in the hall? Perhaps
he is out there; Joe Shirley, president of the Navajo Nation
from Window Rock; Edward Thomas, president of the Central
Council of Tlingit and Haida Indian Tribes in Alaska; Harold
Frazier, president of the Great Plains Tribal Chairman's
Association from Eagle Butte; and Clifford Marshall, chairman
of Hoopa Valley Tribe in California.
If you gentlemen would all sit down. We will start in that
order with President Tex Hall beginning. Nice to see you Tex. I
did not see you in the audience. I was worried that you might
not be able to appear this morning. I am glad you are here.
All of your complete written testimony will be in the
report for all of our colleagues to read, so you do not need to
read that thing word for word because most of us, we can read
pretty well.
We will do that. So if you would like to abbreviate or ad
lib some of your comments, please feel free to do so.
Tex, why don't you go ahead and begin.
Mr. Hall. Good morning, Senator Campbell and Senator Inouye
and members of the committee. Thank you for holding this
hearing.
I would like to make just a quick plea to you to reconsider
running again. Really, we are shocked that you are not running,
and really appreciate your leadership, Senator Ben Nighthorse
Campbell.
The Chairman. Thank you.
Mr. Hall. So if you could reconsider at some time, we
really would encourage you to do that.
The Chairman. I appreciate that. After 38 years of
marriage, my wife says she has been a single mom for 22 years
and been married at the same time. [Laughter.]
Three of my grandchildren do not know who I am and I have a
dog that growls at me when I come home. [Laughter.]
So I think it is perhaps time to get back to Colorado and
back to the pow-wow circuit if nothing else. Thank you, though,
for your nice thoughts.
Mr. Hall. Thank you.
STATEMENT OF TEX HALL, PRESIDENT, NATIONAL CONGRESS OF AMERICAN
INDIANS
Mr. Hall. Again, I want to thank the committee for having
this hearing today. On February 25, of course, NCAI held a
trust reform summit in this very room to talk about this very
important issue. We heard from all 12 regions and they all
opposed the current reorganization as the way it is presented.
So we specifically asked each region as they presented. They
wanted to develop agency-specific plans versus the top-heavy
bureaucratic plans. So again, all tribes in all regions are
opposed to the reorganization plan.
So we feel that DOI has focused its efforts on the top of
the organization, rather than on the bottom, on the local
grassroots level where reorganization should really begin. So
this ongoing reorganization at the top-heavy bureaucratic level
is really now at the expense of local agencies and Bureau of
Indian Affairs programs. A top-heavy organization does not
address the desperate need for trust account resource
management at the agency and local level.
Trust management requires people and systems at the agency
level addressing resource management, range unit compliance,
inspections, enforcement, title, appraisal and probates. This
work cannot be done by bureaucrats and accountants in
Washington, DC or Albuquerque, NM. It has to occur at the
agency level.
Tribes have always been and continue to be willing to work
with DOI on trust reform, but DOI has chosen to shut the tribes
out of the consultation process. Tribal leaders want change,
contrary to what you may here. We want change. We want
improvement in the system and in the way DOI manages trust
funds and trust resources. However, tribal comments and
suggestions concerning reorganization have fallen on deaf ears.
We believe now is the time for congressional intervention. We
are really at the crossroads, Mr. Chairman. We really feel that
it is so important now that Congress take the lead in this
because we simply are not getting anywhere.
If I could add up the number of dollars that have been
spent on reorganization since the last 12 years, we would
probably exceed $1 billion. Yet, what are the results? What are
the results of the reorganization? We have not seen those
moneys, those $1 billions really effect change at the local
level, and that really the critical crying point that tribes
come to appeal to the committee today. That is really where we
need to go.
The second thing is the money that is being shifted from
BIA that is jeopardizing programs that are so critical, human
services, Indian child welfare, education, resource management.
These are people behind those cuts that are being taken
from the BIA funds to fund OST and the reorganization.
So as was mentioned earlier, I heard Senator Daschle's
testimony about one IM account holder in Eagle Butte. There are
so many people like that, and so many people are passing on and
their estates are not being processed, and still looking to see
where their check is at, still not knowing what that check was
appraised at, how much was that resource done.
So we actually did a needs assessment on Fort Berthold, Mr.
Chairman. We have actually studied this on Fort Berthold. Many
of the tribes are now looking at needs assessment at the agency
level. At one point at Fort Berthold, we employed 23 people in
range alone. Today, we have three people in range. This
shortfall in staff is a direct result of the neglect of
providing adequate appropriations.
For example, 25 CFR 166.305 requires the BIA to conduct a
range assessment on every range unit on a reservation prior to
issuance of a permit. The last range assessment completed on
Fort Berthold was in 1982. So we have been neglected since
1982. 25 CFR 166.312 requires the BIA to develop a conservation
plan for each range unit. No conservation plans have been
developed or approved by the BIA despite the issuance of
grazing permits. So we continue to issue permits without
conservation plans.
Range technicians are responsible for ensuring permit
compliance and policing the ranges for trespass and
overgrazing. We have one range technicians to manage over 1
million acres, with the river and the lake, as you know, that
runs right in the middle of Fort Berthold, with grazing lands
spread over 1,376 square miles, and again, one range
technician. There is no way that they could make sure that the
IM account or the tribal lands are in compliance.
There is no appraiser at the Fort Berthold agency, despite
the fact that appraisals are required for farm pasture leases,
grazing permits, right-of-ways, oil and gas leases, land
exchanges, land sales, gift deeds, land consolidation and
trespass damage. Appraisals for the Great Plains region are
presently handled by one appraiser out of Rapid City and he
does it with a desktop appraiser.
He does not do an on-site appraisal. Again, in our local
agency-specific plan, it requests an appraiser on each of our
reservations.
There is a 3-year backlog of over 150 probate cases at the
Fort Berthold agency. It takes approximately 2 years to pay out
the estate proceeds to heirs after the case is decided. There
is only one probate specialist at the agency. We estimate that
the Fort Berthold agency needs three additional probate
specialists to handle the backlog of cases and estate
distributions.
The Fort Berthold agency handles approximately 1,000 title
records annually. Certified title requests take 6 months to
complete because they are done at the regional office.
Finally, the Fort Berthold agency has a approximately 300
oil and gas leases, 100 pending on the reservation. There is a
huge delay in leasing and in payouts of lease income. Although
my tribe is in the middle of a known oil field, the Williston
Basin, and oil fields are developed all around us, the Fort
Berthold agency has no professional staff to handle mineral and
oil and gas transactions.
Other regions, Cheyenne River Sioux Tribe, Winnebago Tribe
in Nebraska are all developing agency-specific plans. DOI
itself has acknowledged that personnel resources are inadequate
to address the current workload that is being done at the
agency office today. DOI actually stated this in their
fiduciary compliance plan submitted to the Federal district
court in January 2003.
So rather than making plans to hire the necessary workers,
the Office of Special Trustee has announced it will hire six
regional trust administrators and 60 trust officers and related
support staff. The BIA is planning to hire 25 deputy regional
directors for trust and a number of deputy trust
superintendents in 2004.
It is difficult to tell exactly the amount from the budget
that has been submitted, but it appears that OST and BIA have
substantial funds budgeted to hire staff to fill these
supervisory positions. I simply ask, who are these managers
going to supervise? We do not need more managers at the agency
level. We need workers to fulfill these trust transactions.
So as tribes are looking to develop an agency-specific
plan, the Great Plains Region and the Rocky Mountain Region
both have passed and adopted resolutions to do that. We have
not gotten the support of OST or BIA. So again, we are coming
to the committee to ask for the Senate Committee on Indian
Affairs to assist tribes in this manner and we are very hopeful
that we can move toward a resolution.
We feel, in closing that this reorganization is obviously
putting the cart before the horse and we have some great
principles that we think will help fix the system, but again,
Senator Campbell, we are shut out of the consultation process.
Thank you for giving me the opportunity to present.
[Prepared statement of Mr. Hall appears in appendix.]
The Chairman. Thank you.
Since I do not have questions for all of the committee, I
will go ahead with a couple for you, President Hall. It is
clear you do not believe that the tribes have been involved
enough in the consultation process. So that is correct, right?
Mr. Hall. That is correct.
The Chairman. Have the concerns that you have addressed to
the committee right now been made known to the bureau or the
Special Trustee during any of the consultation process?
Mr. Hall. On January 13, I believe was the exact date in
Rapid City, Senator. I wanted to attend for that specific
reason, to put it on the record because it was a taped
consultation on the ``to be''reengineering. I asked Ross
Swimmer. I said I just have a simple question, and my question
is, as tribes we are looking to develop agency local specific
plans because of all the issues that I said in my testimony;
would you support it? And his answer was no. I said, well then
we have no other recourse but to talk to Congress about seeing
if we can get a plan that looks locally at developing it,
versus top-heavy.
The Chairman. You mentioned that the Great Plains Region, I
think it was maybe the Tribal Chairman's Association, passed a
resolution concerning the reorganization, and that was then
sent to the Administration, to the agencies. Is that correct?
Mr. Hall. Yes; Harold Frazier is the chairman of the Great
Plains Chairman's Association.
The Chairman. Okay. And did you get a response from that
after you turned that in?
Mr. Hall. No.
The Chairman. You did not get a response.
Mr. Hall. I have not.
The Chairman. You mentioned a big concern about allocation
of manpower. I think you probably were not in the room when
Special Trustee Swimmer testified that most of the manpower
that we are dealing with, and I think I asked him specifically
about where it was going, he said it would be going to local
levels. You believe, however, it will not be. It is still going
to be too centralized.
Mr. Hall. They will be managers and they will not be people
that will actually do day-to-day trust transactions, so we
disagree with that.
The Chairman. Also, I asked specifically about if there
would be any movement of existing funds from other programs,
and was assured in testimony by the earlier panel that there
would not. You still have a concern about that, too, that it
might raid other needed programs to children or elders or
whatever.
Mr. Hall. Absolutely. Mr. Chairman, when we are talking to
the National Indian Education Association and all of the school
administrators and the school boards, they are all upset that
$65 million is being taken from school construction because of
the backlog, as we all know. So they are very concerned about
that, as well as the Indian Child Welfare Act, the Water
Settlement Act and all of those funds that are being taken
away, and of course the overall $52 million that is being taken
from BIA in 2005. People are very upset that there is money
being eroded from the BIA budget.
The Chairman. I note with interest that people from the
Administration are still in the room. Do you believe that there
is still an opportunity to have a dialog to try to work some of
these differences out between the tribes and the
Administration?
Mr. Hall. Mr. Chairman, I would hope so, but I really feel
that we are at that crossroads right now. We have been trying
to, but we were virtually shut out of the consultation process.
So we would hope that Congress would help us, the committee
would help us with an intervention.
The Chairman. We will try to. Thank you very much for your
testimony.
President Shirley, if you would go ahead and continue. All
your testimony will be included in the record, by the way.
STATEMENT OF JOE SHIRLEY, PRESIDENT, NAVAJO NATION
Mr. Shirley. Thank you, Senator Campbell, chairman of the
committee, Vice Chairman Senator Inouye, and members of the
committee.
I am honored to present testimony today on behalf of my
Navajo people. The issue under consideration, the proposed
reorganization of major agencies within the Department of the
Interior related to Native American trust is complex, and its
results will have a tremendous impact on Navajo people. We
appreciate the opportunity to express our position to the
Senate Committee on Indian Affairs. Thank you.
There are five objectives that must be met before any
proposed reorganization, as we see it: First, commitment from
Congress to fund any proposed reorganization with new dollars,
do not do it at the expense of Native American programs;
second, commitment to a full, complete and good faith
government-to-government consultation with Native American
nations; third, the establishment of clear trust standards;
fourth, identification of major agencies to confirm whether
reorganization is necessary; and fifth, to be cognizant of the
fact that Native American nations differ dramatically in
government structure and land base, in order to avoid the one-
size-fits-all approach to reorganization.
Regarding a commitment to appropriate new dollars, a
reasonable inference drawn from the President's budget request
for fiscal year 2005 is that the Administration is committed to
reorganizing the BIA and funding the Office of Special Trustee
with Native American program dollars. The Navajo Nation was
informed by the Administration that there would not be such
reallocated funding. However, our inference is drawn from the
request to decrease Indian health facilities construction by
$52 million and BIA education construction by $65 million,
while within the same fiscal year 2005 request, increase the
Office of the Special Trustee's budget by $130 million.
The Navajo Nation believes that the objective that must be
met is Congress' commitment to appropriate new dollars and not
use Indian program dollars for any proposed reorganization. We
seek this committee's support for such a commitment.
Now, regarding the full, complete and good faith
consultation, we feel the foundation of our government-to-
government relationship with the United States has not been
adhered to. The Navajo Nation appreciates those members of
Congress and those departments within the Administration who
try their best to meet the obligation of government-to-
government consultation. The recent reorganization at the BIA
and the Office of Special Trustee indicates that government-to-
government consultation is replaced with the process that
limited notice, inadequate response time, and the replacement
with presentation of the reorganization for consultation about
the reorganization. Full, complete and good faith consultation
with all Native American nations is essential to any successful
reorganization.
The Navajo Nation seeks Congress' commitment to such
consultation, and seeks this committee's support in securing
such a commitment. The task of proposing the reorganization of
major agencies affecting Native American trust is daunting, but
it is a task that together we can accomplish.
Regarding the establishment of clear trust standards, the
next question that must be answered before any proposed
reorganization is what are the trust standards. The Navajo
Nation continues to argue that the Secretary of the Interior
has the trust responsibility. We also continue to ask for
accountability to this trust responsibility, but the U.S.
Government continues to sway on the clear definition of trust
responsibility. The Cobell litigation is a backdrop for the
discussions of trust reform. Although we support those
individuals in asserting their claims before the courts, we
recommend Congress, not prematurely proposed trust reform, in
reaction to such litigation.
Although Congress and the Administration may not agree with
all Native American nations and vice versa on trust standards,
we would like Congress' commitment to entertain trust standards
that the government and all Native American nations can agree
to, prior to any proposed reorganization of major agencies.
Without clear trust standards, any reorganization would be
based on a system that lacks responsibility and accountability.
Thus, any proposed reorganization would falter and result in
the same lack of responsibility and accountability. Let us work
together on the proposed trust reform. Who better to provide
you with what works and what does not work than the trustee of
this relationship?
Regarding the reorganization of the major agencies under
the Department of the Interior, in the past we have worked with
the government in a way where the Navajo Nation reacted to the
government's proposals, rather than be proactive. The Navajo
Nation believes today is truly historic. This committee is
providing us the opportunity to proactively work with the
government's proposals by allowing us to provide suggestions
prior to proposing trust reform. The Navajo Nation requests a
list of those major agencies that may be proposed for
reorganization.
We also recommend Congress provide adequate time for Native
American nations to review the list. The Navajo Nation would be
greatly impacted because we work with several agencies within
the Department of the Interior, like the Bureau of Land
Management and the Bureau of Reclamation. It is also important
to know when an agency is working as intended, not requiring
reorganization. Let us work together and know when
reorganization is not the answer.
Regarding the avoidance of the one-size-fits-all approach,
finally the Navajo Nation stresses to this committee and
Congress to avoid a one-size-fits-all approach to any proposed
reorganization. As Vice Chairman Senator Inouye noted in his
statement at the NCAI legislative summit 2 weeks ago, we must
be wary of any trust reform. We must take a thorough look at
all differences among all Native American nations. What works
for one Native American nation may not work for another. Let us
not go down the road of dividing Native Americans by proposing
a one-size-fits-all approach. Let us work together to identify
the differences and address those differences through
meaningful consultation. Congress and Native American nations
will then realize our common goal: trust responsibility and
accountability.
In summation, I want to reiterate those points of utmost
concern to Navajo people, and if addressed appropriately, will
ensure a successful reorganization and improve relations
between the Native American nations and the Federal Government.
First, we seek a commitment from Congress to fund any proposed
reorganization with new dollars. Do not do it at the expense of
Native American programs. Secondly, we seek a commitment to
full, complete and good faith government-to-government
consultation with Native American nations. Third, together we
must establish clear trust standards or our labor will be for
nothing.
Fourth, we must work together to identify those major
agencies subject to reorganization, to confirm that
reorganization is necessary. Finally, as we begin this journey,
let us be mindful that Native American nations differ
dramatically in government structure and land base. A sure road
to failure will be to attempt a cheap or quick fix. We must
avoid a one-size-fits-all approach to reorganization.
Thank you.
[Prepared statement of Mr. Shirley appears in appendix.]
The Chairman. Thank you. I think you have made a very
important observation in this statement about one size fits
all, and maybe it is the weakness of the Federal Government
that we often forget here that all those individual treaties,
even though they were all broken, they were not made with one
monolithic Indian group nationwide. They were made nation to
nation, with each tribe being their own entity and land base
and character, as you have mentioned, which is the equivalent
of signing contracts or agreements or treaties with foreign
nations.
If we apply that logic that one size fits all, that would
say that maybe the treaties we have signed with France and
England and Germany and Australia and wherever, we should treat
them all alike. We do not. They are different countries. They
are different nations. They have their own structure. I think
we need to remember that more in the Federal Government when we
are trying to seek resolution to differences between tribes and
the Federal Government. They are all different and should be
treated accordingly, with the dignity each tribe has as a
nation in itself.
I understand, however, the difficulty of doing that. Not so
difficult with the Navajos because they have 280,000 or more
people, but in other States like the Dakotas with maybe 30,000
Lakota, as was mentioned. But there are some tribes in America
that only have five members or four members, and I can
understand the difficulty in dealing with some that have very
few members, but still that is the deal. If there were
individual treaties, they should treat them individually as
nations in their responsibility to it.
Thank you for your testimony.
We will now move to the Honorable Ed Thomas, the President
of the Tlingits. Thank you for being here, Ed. Okay, you first.
Why don't you go ahead. I would note that Senator Murkowski
sent a message over. She is occupied in two other hearings this
same time, and she apologizes for not being here to hear your
statement, but she sent a note that said she will read it very
carefully.
STATEMENT OF EDWARD THOMAS, PRESIDENT, CENTRAL COUNCIL TLINGIT
AND HAIDA INDIAN TRIBES OF ALASKA
Mr. Thomas. Thank you very much. Thank you very much, Mr.
Chairman, first for having this hearing and your deep
commitment to our problems.
I am going to recite a little bit of my background, not to
toot my own horn, but just to kind of give you an overview of
my involvement in this issue. First of all, I have been
president of my tribe since 1984. We have 25,000 citizens. I
represented Alaska on the BIA Reorganization Task Force that
ran from the mid- to late-1980's to the early 1990's. It was
through that process that I became aware and my tribe became
aware of the problems in trust fund management. We were one of
the first tribes to join the Inter-Tribal Monitoring
Association. This association worked toward legislation to fix
those trust management problems.
One of the proposals we put forth back at that time was to
take or remove the entire program from out of the BIA to repair
it, fix it, put it in order and put it back again. We got the
idea from what happened when the Federal Government addressed
the issue of the savings and loan scandal at the very same
time, and saw how quickly and efficiently the Federal
Government addressed those problems, appropriated dollars and
fixed those problems with the savings and loans, and now it is
operating like it should.
I must state that we all know that the trust management
system within the BIA is broken and has been for quite some
time. So while I am not going to talk a lot about that since
other testifiers have, I will zero in on a couple of other
issues. One is the issue of reorganization. Back when we talked
about the reorganization efforts in the 1980's and early
1990's, tribes and tribal leaders were very hesitant to buy
into the reorganization plan put forth at that time, for
several reasons. Pardon me if some of this sounds like BIA
bashing. It is not intended to. It is simply a reciting of what
we went through back then.
First of all, it was clear that in most organizational
problems are hardly ever solved simply by moving boxes around
on the organizational chart. It appeared that that was what was
happening. There were a couple of statements that came forward.
One was, Indian tribes are tired of seeing people rotated
throughout the system. It is like rotating worn out tires. That
was one statement. The other one is that when you do any
reorganization in government, the deadwood always floats to the
top. People that once could not do the job down on lower levels
then become escalated and becomes the ones in charge at the
upper levels. We have seen that happen more than once, so I
wanted to point those things out.
Now, there is no doubt that in the minds of many of us, the
funding for trust reform comes from BIA tribal programs, those
programs you talked about in your comments. When you see the
overall BIA budget just barely keeping flat and you see one
line item increase and the others go down, it becomes very
apparent to us in a finite budget that the money shifted from
one program to another.
Now, is that a big deal? The $109 million that Special
Trustee Swimmer spoke of sounds like a lot of money, and it is
when it comes from a finite underfunded BIA budget. But when
you compare it to what happened in the savings and loan scandal
issue, they were not talking about millions, they were talking
about billions. And these appropriations, I think the lowest
one that I recall was about $5 billion and the highest was
about $82 billion, appropriated all in the span of 1 year to
fix the savings and loan problem.
So I maintain that if the Federal Government had funded
tribal programs at least to keep pace with inflation, we would
not be so worried about the extra dollars being used to
reorganize the BIA and to fix the Federal trust problems.
When I look at the way land and resources are managed by
States and other entities, I see that the moneys that are put
aside for these tasks in the BIA and even in BLM is very, very
meager compared to what is being used to fund land management
by States or dollars being managed by Federal bank systems for
non-Indians.
The point being is that even if we were to fully fund our
programs as presented by the Special Trustee or the Secretary,
I do not personally believe that is enough money to manage
these resources. We need more resources to manage all of those
properties all the way down to the tribe/agency level. That has
to happen at some point in time.
So Mr. Chairman, once again I thank you for your dedication
to our issues over your tenure here in Congress. I join others
in saying I am sorry that you have made your choices, but I
certainly understand them, particularly with the dog growling.
[Laughter.]
But I think that your history from our point of view will
be a kind history, and I want to say that. I hope that as we
leave this era in our relationship with the Federal Government
that we can see some of those dollars restored to make whole,
if you may, the tribal programs and to create enough of a
system so that our trust resources can be managed in a
professional manner and adhere to the standards that are being
adhered to by other parts of this government for non-Native
assets.
Thank you very much.
[Prepared statement of Mr. Thomas appears in appendix.]
The Chairman. Thank you. I want to tell you that in my last
year as the chairman of this committee, I intend to do
everything I can to make sure that we leave it a little better
for Indian country than we found it. I know I can speak for
Senator Inouye, too, who may also be leaving the committee.
Thank you.
Mr. Thomas. There are other parts of my written testimony
that I hope you will read that builds on some of the comments.
The Chairman. Yes; we will. It will be included in the
record and we will read it very carefully. Thank you.
Now, we will go to President Frazier, please.
STATEMENT OF HAROLD FRAZIER, PRESIDENT, GREAT PLAINS TRIBAL
CHAIRMAN'S ASSOCIATION
Mr. Frazier. Thank you. Good morning, Mr. Chairman and
honorable members of the committee.
I am honored to be here today to testify on the Department
of the Interior's reorganization. I thank you for holding this
hearing. I am here representing not only the Cheyenne River
Sioux Tribe, but the Great Plains Tribal Chairman's
Association, in which there are 16 tribes in the Great Plains
region. They encompass the States of North Dakota, South
Dakota, and Nebraska. We are treaty tribes and many of us have
large land bases. We know that we will suffer greatly under the
current reorganization plans of the Department of the Interior.
We tribes are unique, and we know that one size does not fit
all.
Trust comes from treaties and it is time that our treaties
are honored. Trust functions cannot be separated. The current
Department of the Interior reorganization plan is a waste of
money and resources which are much needed at the local agency
levels to provide trust functions. Every day, we see problems
multiplying because of fractionation of line authority. I could
go on and on and tell you stories to justify that, but I
believe that the people who testified earlier, their stories
are similar and are throughout Indian country.
Presently, many of our people cannot access their records
in a timely manner. When they call the Special Trustee office
in Albuquerque, they get phone recordings. We need the face-to-
face relationship restored, which our people depend upon.
Trust officers from the Office of the Special Trustee will
be only duplicating services that the BIA superintendents are
currently providing. We also see that they will be operating
independently from local control. We question, who are they
going to be accountable to? Upper-level bureaucracy will be
creating delays and backlogs in trust functions. Right now, the
way the BIA reorganization was explained to us, the computer
specialist on the Cheyenne River agency, his boss sits here in
Washington, DC. And before he is to do any work, he has to get
a work order from Washington, DC.
The system that they are trying to impose on our people
relies heavily on a computer system. So we know and we foresee
a lot of delays in transactions and for our people to find out
the status of their assets. We know that policies and plans
need to come from local grassroots levels up, not from upper-
level down. The solutions are in Indian country. We know what
is best for our people. Our plan was developed in Indian
country, by Indians, for Indians. Only a few trust functions
can be nationalized. The others need to be modified to fit
appropriate regions, because one size does not fit all.
Based on 2001 statistics, the Great Plains region had over
67,000 IIM accounts, more than any other regions. We have a
plan. We are requesting a pilot program similar to the
legislative rider that the Self Governance Tribes received in
the 2004 Interior appropriations bill. Our plan would give more
authority, funding and functions back to local agencies.
Based on article V and article XI of the 1868 Fort Laramie
Treaty, the United States guaranteed that they would provide
services at the local level to our people and reimburse the
tribes for any services lost. Right now, as you heard President
Hall speak about backlogs in appraisals, I want to say that
also, that right now in the Great Plains region, there is one
appraiser. We need one at every agency.
There are probate backlogs. We agree that there needs to be
a nationalized system that reports all asset transactions at
all agencies. But more importantly, we need more positions at
the local levels to input data into the systems. We need range
and soil conservationists, lease compliance officers, realty,
probate, rights-of-way specialists, and accountant positions to
better manage our assets.
Also in our plan, the Office of Special Trustee will be
only given functions that were intended for them in the 1994
Trust Reform Act. They would only provide monitoring and
oversight of trust reform, not operational functions. Our
agency superintendents would be given back all authorities,
including education and law enforcement because in our
treaties, all of these functions are trusts.
We request your support for our plans and we ask that the
reorganization be driven to benefit Indians in Indian country,
not bureaucrats in Washington, DC, Albuquerque, or Virginia.
Remember, one size does not fit all.
Thank you.
[Prepared statement of Mr. Frazier appears in appendix.]
The Chairman. Thank you.
We have had some contact with the committee. You mentioned
the 1994 Act that authorized the Office of Special Trustee.
That was supposed to be a temporary position until we resolve
this problem, but some of the contacts we have had are telling
us it appears that it is becoming an institution of government
now, and there is some concern about it.
Let me ask you about consultation. Mr. President, I assume
you do not feel there was adequate consultation with the Great
Plains Tribal Chairman's Association or individual tribes. Is
that correct or no?
Mr. Frazier. Yes; I heard about this ``to be,''these
meetings going around when I was in an ITMA meeting in Las
Vegas. I was quite amazed that in the Great Plains region,
there were no meetings scheduled for our region, even though we
have the highest amount of IIM accounts.
The Chairman. There was no meeting scheduled at all?
Mr. Frazier. No; not at that time.
The Chairman. So you, as tribal chairman within your
association, have not had any meetings with them?
Mr. Frazier. No; we had to bring that issue up, and then
they did come on January 13 to Rapid City, but we do not view
that as consultation. It always seemed like we are always
defending issues. They come to the table and say, they inform
us of what they are going to do, and there is no dialogue
there, I believe.
The Chairman. I see. Okay. Thank you. I appreciate your
testimony and there will be probably some written questions to
you, too.
Mr. Frazier. Thank you.
The Chairman. We now move to Clifford Marshall, chairman of
the Hoopa Valley Tribal Council.
STATEMENT OF CLIFFORD LYLE MARSHALL, CHAIRMAN, HOOPA VALLEY
TRIBAL COUNCIL
Mr. Marshall. Thank you, Mr. Chairman.
Mr. Chairman, members of the committee, I am Clifford Lyle
Marshall, chairman of the Hoopa Valley Tribe. I thank you again
for inviting me to testify on trust reform.
I last testified before this committee on May 21, 2003 on
the subject of trust reform. I testified on behalf of the
California Consortium on Trust Reform, a consortium of seven
tribes in California, including Hoopa. At that hearing, I
presented an attachment with my testimony, the operating
agreement between the BIAs' Pacific Regional Office and the
California Trust Reform Consortium.
At that time, I testified about the positive activities
that the Consortium and the BIA Pacific Regional Office had
undertaken and that the Consortium tribes had collectively
found ways to work with the BIA to successfully implement one
of the most progressive trust resource improvement programs
that exists anywhere in Indian country today. I also testified
that other tribes, like the Salt River Pima Maricopa in
Arizona, the Confederated Tribes of Salish and Kootenai, and
the Chippewa Cree of Rocky Boy Montana had accomplished
positive trust reform through their own unique working
relationships with their respective BIA agencies.
I asked at that time that the California Consortium be
allowed to continue implementing our BIA-Consortium effort and
work collectively to solve trust management problems at the
local level. I also asked that the committee consider
establishing a tribal trust reform pilot project that would
preserve and protect these established working relationships
between these tribes and the BIA.
Last year, this pilot project was established in section
139 of the Department of the Interior and Related Agencies
Appropriations Act of 2004. This act provided that the
California Consortium, which includes Hoopa, the Salish and
Kootenai, Rocky Boy, and the Salt River Pima Maricopa Tribes,
were designated by Congress to operate separate and apart from
the Department of the Interior's trust reform reorganization.
Section 139, however, had a proviso added that it stated
that the tribes referred to in section 139 had to demonstrate
to the satisfaction of the Secretary of the Interior that they
had the capability to carry out the responsibilities under the
same fiduciary standards as those to which the Secretary of the
Interior is held. I believe you heard Mr. Swimmer say that
today.
We were told that this meant that we had to meet the
Secretary's proper discharge of trust responsibilities to the
United States as set forth in part 303, chapter two of the
departmental manual for the Department of Interior. In
discussion with Interior staff prior to the introduction of
section 139, we believed that this would be a cursory review of
our most recent trust evaluations and audits. However, we were
later informed that we would be assessed, and our assessment
would be as against the ``as is'' and ``to be'' models. We felt
that this was entirely unfair and imposition of the
department's trust management infrastructure, and what we felt
was a clear violation of the intent of Congress, which was that
the tribes remain separate and apart from trust reform.
We countered that under the Self-Governance Act, self-
governing tribes were required to comply with Federal law and
standards set forth in Federal regulation. Between December
2003 and February 2004, each of the 10 tribes were visited by
an assessment team of the Office of Special Trustee for Indian
Programs, Office of Trust Review and Audit. The teams consisted
of four to six auditors and attorneys. The assessments lasted 1
to 4 days. Hoopa's review lasted 2 days. When asked what we
were being evaluated against, the response was they were not
sure, but they were there to collect information. We were later
told that we were being compared to a trust company.
Our fiscal management program policies and procedures,
records management program policies and procedures, and our
land and resource management program policies and procedures
were scrutinized. On March 8, 2004, the Hoopa Valley Tribe
received the final draft of the Department of the Interior's
assessment. The Hoopa Tribe now has 30 days to provide
comments. For forestry, the assessment concluded that no
discrepancies were noted in the timber sales transaction file
review. For wildland fire protection, the assessment noted that
the fire suppression unit is sound, but funding level is one-
third of what is necessary to protect the timber resource. The
assessment noted that our roads department maintains 108 miles
of road, but is funded at 11 percent of need. The assessment
also noted that the Pacific Region has not processed one
probate for a Hoopa Indian in the last 7 years.
For the records management, the assessment noted that the
tribe maintains all California Indian rolls from the 1920's and
census records on Indian rancherias going back to 1882; have a
record schedule policy for all departments; maintain a records
inventory; uses a Doc Star computer system to electronically
store records on CD rom discs; and uses an interdisciplinary
approach for developing new policies and procedures. The
assessment concluded that, ``in appearance, all records are
well organized, labeled and secured.''
The assessment of our fiscal department concludes that the
fiscal department appears to have excellent records management
systems and superior internal controls operation. Regarding
information technology, the assessment states that Hoopa uses a
fully integrated fund accounting system, Windows 2000 server
with sonic wall firewall software, trackit software to keep an
inventory of the software and hardware used; perform security
testing, maintains strict controls on software installation;
maintains virus scanning updates; and backs up and stores its
data weekly on CD rom disc and stores it in a safety deposit
box in a fireproof safe at a local bank.
The executive summary concludes that the tribe is capable
of performing trust functions. It goes on to say the tribe had
some minor weaknesses that need attention, but do not prevent
them from meeting section 139 requirements. Specifically, the
tribe should seek an external evaluation of their information
technology systems, policy, and procedures to certify
compliance with applicable information security mandates.
I would like to address these alleged weaknesses. First,
there are no section 139 requirements. Section 139 specifically
said that the 139 tribes were to remain separate and apart from
trust reform. Second, there are no applicable information
security mandates. Third, the BIA and OST do not have an
information technology system that works. OST has spent over
$70 million on the TAMS system that has never worked, is not on
line, and the BIA is still operating without Internet access.
Fourth, the Department of Interior has paid $60 million on
external evaluations to produce the ``as is'' and ``to be''
models, and are not any closer to implementing a system.
In fiscal year 2003, like every previous year for the past
15 years, the Hoopa Tribe was audited by a certified accounting
firm, evaluated by the Pacific Regional Office pursuant to the
Self Governance Act, and assessed by the Office of Special
Trustee. It is hard to understand why OST would now conclude
that we need another external evaluation. Hoopa considers the
OST assessment an external evaluation.
It appears that OST is holding us to a standard that the
BIA and the Secretary have never achieved. Hoopa Tribe's
computer systems, used to manage 57 departments, have been an
investment that has accumulatively over the past 10 years cost
hundreds of thousands of dollars. We have put our funding into
developing an infrastructure and developing our capability. We
have used our funds to build a system that works for us. It
also works for our auditors and it works for the BIA regional
office who does our trust evaluations. Why does Hoopa need
another evaluation? More importantly, who is going to pay for
it? If there are minor weaknesses in Hoopa's management, and I
do not read in the assessment any finding that there is, it is
because of inadequate funding. I believe that the other section
139 tribes would say the same.
I believe that the section 139 assessment was in fact an
application of the trust reform ``to be'' model and turned the
intent of section 139 on its head. But the importance of
section 139 is that it shielded the section 139 tribes from
trust reform reorganization changes and preserved the operating
agreements and working relationships of the 10 tribes and their
agencies. Section 139 required that the tribes demonstrate to
the Secretary that they have the capability to meet the
fiduciary duties of the Secretary.
I am proud to say to this committee today that Hoopa's
assessment and, to my knowledge, all the other section 139
tribes state, the tribe is capable of performing trust
functions. We passed this arduous test and proved our
capability.
In conclusion, since trust reform continues to be a mystery
wrapped in an enigma to most of us, and the section 139 tribes
have shown that they are managing at the same level or above
that of the BIA, I ask that you support extending section 139
for another year. The purpose of section 139 was to maintain
what is working now in Indian country.
Thank you for this opportunity to speak to you today.
[Prepared statement of Mr. Marshall appears in appendix.]
The Chairman. Thank you. Let me ask you a couple of
questions, Chairman Marshall.
Just as a sidebar, do you know the Risling family out
there?
Mr. Marshall. I will tell you a story, sir.
The Chairman. You better not do that. It is on the record
here. [Laughter.]
Mr. Marshall. I have known you for many years. When I was
in law school and clerking here in Washington, DC and when I
was a tribal councilman, I would shake your hand and you would
say, ``where are you from?'' And I would say, ``I am from
Hoopa.'' And you would always say, ``Do you know the Risling
family?''
The Chairman. Well, tell them hello.
Mr. Marshall. ``And do you know David Risling?'' And I
would always answer, ``That is my uncle.''
The Chairman. Yes; I am sorry. I forgot that. We were on
the board of D-Q University years and years ago together and he
is a fine man, as is the family. Give them my best. I promise
not to ask you the next time I see you if you know the Risling
family. [Laughter.]
Mr. Marshall. I appreciate that you connect me. [Laughter.]
The Chairman. Okay.
Your tribe has been operating under the so-called ``section
139 pilot project,'' you spoke about, for several months now,
and I assume that you want that to continue in the future.
Based on your experience so far, what changes would you
recommend to make it a better project for your tribe and do you
think it could be replicated for other tribes, the pilot
project that has worked for you, without getting into this so-
called one-size-fits-all syndrome?
Mr. Marshall. The program that we operate under is the Self
Governance Act. I believe it is a very successful piece of
legislation, and in fact 46 percent of all tribes now are Self
Governance tribes.
I am concerned that the way that trust reform is
restructuring the bureau, that decisionmaking is being moved to
being centralized within the Beltway, that our relationships
that we have developed over the past 15 years with our local
and regional offices, that the decisions that have been made to
make the program successful, those decisions will not be able
to be made at the local or regional level.
So I guess that is what section 139 was about as a pilot
project. Keep what the tribes have developed, and what the
tribes are saying loudly are working at the local level, in
place. I believe that a lot of tribes would come forward and
say the same thing.
The Chairman. You heard the testimony of the agencies. As I
understand them, there will be more people at the local level,
but it is your position that even though there may be more
people at the local level, the decisions still will not be made
at the local level. They will be filtered to a central
decisionmaking process. Is that correct?
Mr. Marshall. I heard the testimony today that these would
be worker bees. I know that everyone at this table, and what
would exist in California, is understaffed and underfunded. The
way that the Consortium tribes and the Hoopa Tribe makes things
work is that they have to take what little they get from the
bureau, what we get from the bureau, and we have to find other
sources of funding and then we build programs. We use indirect
cost money, compact money, and tribal revenues, as well as
other grant funding.
Trust evaluation, we asked, what are you evaluating? Are
you evaluating just what the bureau gives us or are you
evaluating the rest of the program? I mentioned our roads
program. We get 11 percent of our funding from the bureau. The
rest of it comes from a business that the tribe built, an
aggregate plant that the tribe built, and from timber sales
contracts, maintaining roads for timber sales.
Are you evaluating the money against the money that we put
into it or the money you give us? Salish Kootenai used the
example of a fisheries program where they get $60 from the BIA
and put $200,000 more into the program.
What is the trustee going to evaluate, the special trustee?
And is he there to evaluate us or help us or provide us with a
service? We are not sure. We know that at this point, what we
do and the decisions we make, work. So we are really not sure
if they can help us.
The Chairman. Okay. I thank you. We will followup with some
written questions. President Shirley, just so you will know
that the only friends that I have are not just at Hoopa, please
tell the Benn family, old spiritual leaders and sand painters
at Navajo, I am still here and look forward to seeing them
again back when I am in my private life. Thank you.
With that, we will keep the record open for 2 weeks and we
certainly appreciate everybody appearing.
This hearing is adjourned.
[Whereupon, at 11:20 a.m. the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Prepared Statement of Clifford Lyle Marshall, Chairman, Hoopa Valley
Tribe
Mr. Chairman, members of the committee, I am Clifford Lyle
Marshall, chairman of the Hoopa Valley Tribe. I thank you for again
inviting me to testify on Trust Reform. I last testified before this
committee on May 21, 2003 on the subject of Trust Reform. I testified
on behalf of the California Consortium on Trust Reform, a consortium of
seven tribes in California including Hoopa. At that hearing I presented
as an attachment with my testimony the ``Operating Agreement Between
the Bureau of Indian Affairs Pacific Regional Office and the California
Trust Reform Consortium.''
At that time I testified about ``the positive activities that the
Consortium and BIA Pacific Regional Office had undertaken,'' and that
``the Consortium Tribes had collectively found ways to work with the
BIA to successfully implement one of the most progressive trust
resource improvement programs that exists anywhere in Indian country
today.'' I also testified that other tribes like the Salt River Pima
Maricopa in Arizona, the Confederated Tribes of Salish and Kootenai,
and the Chippewa Cree of Rocky Boy Montana had accomplished positive
trust reform through their own unique working relationships with their
respective BIA agencies. I asked, at that time, that the California
Consortium ``be allowed to continue implementing our BIA/Consortium
effort and work collectively to solve trust management problems at the
local level.'' And I also asked that the committee consider
establishing a Tribal Trust Reform Pilot Project that would preserve
and protect these established working relationships between tribes and
the BIA.
Last year this pilot project was established in sec. 139 of the
Department of the Interior and Related Agencies Appropriations Act of
2004. This Act provided that the California Consortium which includes
Hoopa, the Salish and Kootenai, Rocky Boy, and the Salt River Pima
Maricopa Tribes were designated by Congress to ``operate separate and
apart from the Department of the Interior's trust reform
reorganization.''
Sec. 139, however, had a proviso added to it that stated that the
tribes referred to in sec. 139 had to ``demonstrate to the satisfaction
of the Secretary of the Interior that they have the capability to
carryout their responsibilities under the same fiduciary standards as
those to which the Secretary of the Interior is held.'' In discussions
with Interior staff prior to the introduction of sec. 139 we believed
that this would be a cursory review of our most recent trust
evaluations and audits. However, we were later informed that we would
be assessed, and our assessment would be as against the ``As-Is'' and
``To-Be'' models. We felt that this was entirely unfair, an imposition
of the Department's trust management infrastructure, and what we felt
was a clear violation of the intent of Congress which was that the
tribes remain separate and apart from trust reform. We countered that
under the Self Governance Act, Self Governance tribes are required to
comply with Federal law and standards set forth in Federal regulations.
Between December 2003, and February 2004 each of the 10 tribes were
visited by an assessment team of the Office of Special Trustee for
Indian Programs, Office of Trust Review and Audit. The teams consisted
of four to six auditors and attorneys, the assessments lasted for 1 to
4 days. Hoopa's review lasted 2 days. When asked what we were being
evaluated against the response was that they weren't sure; that they
were there to collect information. We were later told that we were
being compared to a trust company. Our fiscal management program,
policies and procedures, records management program, policies and
procedures and our land and resource management programs, policies, and
procedures were scrutinized.
On March 8, 2004 the Hoopa Valley Tribe received the final draft of
the Department of the Interior's assessment. The Hoopa Tribe now has 30
days to provide comments. For Forestry, the assessment concluded that
``no discrepancies were noted in the timber sales transaction file
review.'' For Wildland Fire protection the assessment noted that ``the
fire suppression unit is sound'' but funding level is one-third of what
is necessary to protect the timber resource. The assessment noted that
our Roads Department maintains 108 miles of road but is funded at 11
percent of need. The Assessment also noted that the Pacific Region has
not processed one probate for a Hoopa Indian in the last 7 years.
For records management the assessment noted that the tribe
maintains all California Indian Rolls from the 1920's, and census
records on Indian rancherias going back to 1882; have a record schedule
policy for all departments; maintain a records inventory, uses a Doc
Star computer system to electronically store records on CD Rom disks;
and use an interdisciplinary approach for developing new policies and
procedures. The assessment concludes that, ``in appearance, all records
are well organized, labeled, and secured.'' The assessment of our
fiscal department concludes that ``the fiscal department appears to
have excellent records management system and superior internal controls
operation.'' Regarding information technology the assessment states
Hoopa uses a ``fully integrated fund accounting system; windows 2000
server with sonic wall firewall software; trackit software to keep an
inventory of the software and hardware used; performs security testing,
maintains strict controls on software installation; maintains virus
scanning updates; and backs up and stores its data weekly on CD Rom
disc and stores it in a safety deposit box in a fireproof safe at the
local bank.
The executive summary concludes that, ``The Tribe is capable of
performing trust functions. The tribe had some minor weaknesses that
need attention but do not prevent them from meeting section 139
requirements.'' Specifically, the tribe should seek an external
evaluation of their information technology systems, policy, and
procedures to certify compliance with applicable information security
mandates.''
I would like to address these alleged weaknesses. First, there are
no sec. 139 requirements. Sec. 139 specifically said the 139 tribes
were to remain separate and apart from trust reform. Second, there are
no ``applicable information security mandates.'' Third, the BIA and OST
don't have an ``information technology system'' that works. OST has
spent over $70 million on the TAMS system that has never worked, is not
on line, and the BIA is still operating without internet access.
Fourth, the Department of the Interior has paid $60 million on external
evaluations to produce the ``As Is'' and ``To Be'' models and aren't
any closer to implementing a system.
In fiscal year 2003, like every previous year for the past 15
years, Hoopa was audited by a certified accounting firm, evaluated by
the Pacific Regional Office pursuant to the Self Governance Act; and
assessed by the Office of Special Trustee. It is hard to understand why
OST would conclude that we need another ``external evaluation.'' Hoopa
considers the OST assessment an external evaluation.
It appears that OST is holding us to a standard that the BIA and
the Secretary has never achieved. The Hoopa Tribe's computer systems,
used to manage 57 departments, have been an investment that has
accumulatively over the past 10 years have cost hundreds of thousands
of dollars. We've put our funding into developing an infrastructure and
developing our capability. We've used our funds to build a system that
works for us. It also works for our auditors and it works for the BIA
Regional Office who does our evaluations. Why does Hoopa need another
evaluation? More importantly, who is going to pay for it? If there are
minor weaknesses in Hoopa's management, and I don't read in the
assessment any finding that there is, it's because of inadequate
funding. I believe that the other sec. 139 tribes would say the same.
I believe that the sec. 139 assessment was, in fact, an application
of the trust reform ``To Be'' model and turned the intent of sec. 139
on its head. But the importance of sec. 139 is that it shielded the
sec. 139 tribes from trust reform/reorganization changes and preserved
the agreements and working relationships of the 10 tribes and their
agencies. Sec. 139 required that the tribes demonstrate to the
Secretary that they have the capability to meet the fiduciary duties of
the Secretary. I am proud to say to this committee today that Hoopa's
assessment and, to my knowledge, all the other sec. 139 tribes state,
``The tribe is capable of performing trust functions.'' We passed this
arduous test and proved our capability. In conclusion, since Trust
Reform continues to be a mystery wrapped in an enigma to most of us,
and the sec. 139 tribes have shown that they are managing at the same
level or above that of the BIA, I ask that you support extending sec.
139 for another year. The purpose of sec. 139 was to maintain what is
working now in Indian country.
Thank you for this opportunity to speak today.
______
Prepared Statement of Joe Shirley, President, Navajo Nation
Chairman Nighthorse Campbell, Vice Chairman Inouye and members of
the committee, I am honored to present testimony today on behalf of the
Navajo people. The issue under consideration, the proposed
reorganization of major agencies and functions related to Native
American trust reform matters in the Department of the Interior, is
complex and its results will have a tremendous impact on the Navajo
people. We appreciate the opportunity to express our position to the
Senate Committee on Indian Affairs. The Navajo Nation requests that the
following written testimony be submitted in the record:
There are five objectives that must be met before any proposed
reorganization:
No. 1. Commitment from Congress to fund any proposed reorganization
with new dollars, not at the expense of Native American Programs.
No. 2. Commitment to full, complete, and good faith government-to-
government consultation with Native American Nations.
No. 3. Establishment of clear trust standards.
No. 4. Identify the ``major agencies,'' and their ``functions,''
and confirm whether reorganization or reform is necessary.
No. 5. Be cognizant of the fact that Native American Nations differ
dramatically in government structure and land base, in order to avoid a
``one size fits all'' approach to reorganization.
A reasonable inference drawn from the President's Budget Request
for fiscal year 2005 is that the Administration is committed to
reorganizing the Bureau of Indian Affairs, and funding the Office of
the Special Trustee, with Native American Program dollars. Navajo was
informed by the Administration that there would not be such reallocated
funding. Our inference is drawn from the request to decrease Indian
Health Facilities Construction by $52 million, and BIA Education
Construction by $65 million, while within the same fiscal year 2005
request, increase the Office of the Special Trustee's budget by $42
million. The Navajo Nation believes that one objective that must be met
is Congress' commitment to appropriate any proposed reorganization only
with new dollars and not Indian Program dollars, and we seek this
committee's support of such commitment.
The foundation of our government-to-government relationship with
the United States, specifically the Congress and the Administration, we
feel, has not been adhered to. The Navajo Nation appreciates those
Members of Congress and those departments within the Administration who
try their best to meet the obligation of government-to-government
consultation. However, the recent reorganization of the BIA and OST
indicates that government-to-government consultation is replaced with a
process of limited notice, inadequate response time, and the
replacement with ``presentation'' of the reorganization for
``consultation'' about the reorganization. Full, complete, and good
faith consultation with all Native American Nations is essential to any
successful reorganization, and Navajo seeks Congress' commitment to
such consultation, and seeks this committee's support in securing such
commitment. The task of proposing the reorganization of the major
agencies and functions affecting Native American trust is daunting; but
it is a task that together we can accomplish.
The next question that must be answered before any proposed
reorganization goes forward, is WHAT ARE THE TRUST STANDARDS? We, along
with other Native American Nations continue to argue that the Secretary
of the Interior has a Trust Responsibility. We also continue to ask for
accountability to this Trust Responsibility, but we, including the U.S.
Government continue to sway on the clear definition of this Trust
Responsibility. The Cobell litigation is a backdrop for these
discussions of reorganization and trust reform and, although we support
those individuals in asserting their claims before the courts, we
recommend Congress not prematurely propose reorganization and trust
reform in reaction to such litigation.
Although the Congress and the Administration may not agree with all
Native American Nations, and vice-versa, on the Trust Standards, we, at
a minimum, would like Congress' commitment to entertain Trust
Standards, and possibly establish clear trust standard, that may be in
agreement by the Government and all Native American Nations, prior to
any proposed reorganization of major agencies and their functions or
trust reform. Without clear trust standards, any reorganization or
reform would be based on a system that lacks responsibility or
accountability. Thus, any such proposed reorganization or trust reform
would still falter, and result in the same lack of responsibility or
accountability. Let us work together in any proposed reorganization or
trust reform. Who better to provide you with what works and what
doesn't work, than the trustee of this relationship.
In the past, we have worked with the Government in a way where we,
the Navajo Nation reacted to your proposals rather than proactively
with your proposals. The Navajo Nation believes that today is truly
historic. This committee is providing us the opportunity to proactively
work with any of your proposals, by allowing us to provide suggestions,
prior to approaching proposed agency and function reorganization and
trust reform. The Navajo Nation requests a list of those major agencies
and functions that may be proposed for reorganization. Further, we
recommend the Congress provide adequate time for Native American
Nations to review the list and functions. The Navajo Nation would be
greatly impacted, as we, along with other Native American Nations, work
with several agencies within the Department of the Interior, that is,
the Bureau of Land Management, Bureau of Reclamation, and Parks and
Service, to name a few.
It is also important to know when an agency and its functions are
working as intended, thus, not requiring reorganization. Let us, the
Congress and Native American Nations, as we work together, know when
reorganization is not the answer and hold steadfast in our possible
agreements to not reorganize an agency or its functions.
Finally, the Navajo Nation stresses to this committee, and the
Congress, to avoid a ``one size fits all'' approach to any proposed
reorganization or trust reform. As Vice Chairman Senator Inouye noted
in a statement at the NCAI Legislative Summit 2 weeks ago, we must be
wary of any trust reform. We must take thorough look at all the
difference among all Native American Nations. What works for one Native
Amen*can Nation may not work for another. Let us not go down the road
of dividing us by proposing a ``one size fits all'' approach. Let us
work together to identify the differences and address those differences
through meaningful consultation, which I commented on earlier in my
testimony. We, both Congress and Native American Nations, will then
realize our common goal. Trust Responsibility and Accountability.
In summation, I want to reiterate those points of utmost concern to
Navajo People and, if addressed appropriately, will ensure a successful
reorganization and improved relations among the Native American Nations
and the Federal Government. First, We seek a commitment from Congress
to fund any proposed reorganization with new dollars, not at the
expense of Native American Programs. Second, we seek a commitment to
full, complete, and good faith government-to-government consultation
with Native American Nations. Third, together we must establish clear
trust standards or our labor will be for naught. Fourth, we must work
together to identify those ``major agencies,'' and their ``functions,''
subject to reorganization to confirm that reorganization or reform is
necessary. Finally, as we begin this journey, let us be mindful that
Native American Nations differ dramatically in government structure and
land base. A sure road to failure will be to attempt a cheap or quick
fix; we must avoid a ``one size fits all'' approach to reorganization.
Thank you.
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